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

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CHAIRMAN PELLEGRINO: Thank you very much, Howard . Our third speaker is Dr. Farr Curlin . Dr. Curlin.

DR. CURLIN: Thank you, Dr. Pellegrino , and I also would like to say it's a great honor to have a chance to address the Council and to be a part of this panel with my colleagues, although, as you'll see, I will disagree with them on some important levels.

Let me begin with my observations as a physician and as one who has observed the practices of other physicians. Physicians commonly refuse to provide clinical interventions that patients request even when those interventions are legal and permitted by the medical profession. These refusals are neither new nor peripheral to clinical practice.

Physicians of course refuse interventions that they believe are categorically unethical. In taking the Hippocratic Oath, physicians have for centuries sworn to refuse to provide either abortifacients or any drug or information that will be used to help kill patients. Physicians also refuse practices that they believe are ethical in some cases but not in the case at hand. For example, I believe it is ethically permissible to sedate dying patients to the point of unconsciousness if the intended and direct effect of the sedation is to relieve distressful symptoms that are refractory to other treatments. Yet in my own practice of hospice and palliative medicine, I sometimes disagree with patients, their families, or other health care providers about whether we should increase the level of sedation in a particular case.

Sometimes physicians refuse interventions that are the subject of widespread public dispute, such as abortion or emergency contraception. More often their refusals occasion little controversy. For example, surgeons refuse to operate when they believe a surgery is unlikely to be successful whether or not all of their colleagues agree. Physicians refuse requests for antibiotics or other remedies even if the patient's symptoms satisfy some threshold criteria for using these medications. Physicians may refuse requested interventions because of tangible concerns about safety or efficacy, or they may refuse because of concerns that are less tangible if no less real. Some Catholic physicians refuse to provide contraceptive medications because the Roman Catholic Church teaches that such medications illicitly separate the procreative and unitive aspects of human sexuality.

More commonly, physicians' intangible concerns are not explicitly religious. Some pediatricians refuse to provide growth hormone injections to boys who are short because of concern about crossing a line between treatment and enhancement. Internists and family physicians sometimes refuse intensive work-ups and treatment regimens for what they believe are psychosomatic syndromes, because they are concerned about being good stewards of their colleagues' time and other medical resources. Obstetrician-gynecologists who will abort fetuses with lethal congenital anomalies may refuse to abort those with Down's Syndrome or cleft palate out of concern about societal attitudes toward those with disability. Physicians refuse patient requests even when patients are informed, even when threshold medical criteria are met that would generally justify the intervention, and even when physicians are aware that some of their colleagues would disagree with their refusal.

So to say refusal[s] [are] conscientious is simply to say that [they are] based on a physician's best judgment about what he or she ought to do in a given case. . . they are . . . based on what physicians believe are good reasons. In a morally pluralistic society, such reasons will not be persuasive to all, but they will be intelligible and plausible.

So to say a refusal is conscientious is simply to say that it is based on a physician's best judgment about what he or she ought to do in a given case. In its recent opinion, the ethics committee of the American College of Obstetricians and Gynecologists wrote that, "An appeal to conscience would express a sentiment such as 'If I were to do X, I could not live with myself. I would hate myself. I wouldn't be able to sleep at night.'" Professor Brody mentioned a notion that my grandmother would turnover in her grave if I did this.

I would suggest that conscientious refusals need not be so dramatic. Rather, they are merely refusals based on what physicians believe are good reasons. In a morally pluralistic society, such reasons will not be persuasive to all, but they will be intelligible and plausible. And I should note that in virtually every case of which I'm aware, people do give reasons. I have not seen people, at least in public discourse, say "I can't do this just because my conscience says so." Rather, they say "I can't do that in good conscience because" and then what follows as a reason.

Now, critics sometimes suggest that health care professionals' stated reasons for refusing particular interventions are specious and hide unspoken prejudices. I was encouraged to hear Professor Brody note that we should presume good faith about people's objections. In the essay that was in the briefing booklet, Professor Brody and Susan Night say they "suspect that what the conscientious pharmacist" who refuses emergency contraceptive pills - what that pharmacist actually objects to but does not have the nerve to say outright is the possibility that a woman can engage in sexual activity without having to face the moral consequences of her potentially illicit act.

Now, it goes without saying that physicians who act capriciously are not acting conscientiously, yet the scare quotes around the terms conscientious and moral suggest, I think, that the authors do not acknowledge or take sufficiently seriously genuine moral disagreement about postcoital contraception.

The conscience as a human faculty is both limited and fallible. Yet, however fallible, conscientious refusals are, I think, a logical and necessary consequence of physicians exercising discernment or clinical judgment.

To say that conscientious refusals are central to the practice of medicine is not to say that every conscientious refusal is justified. Father Paris talked about that in some detail earlier. A conscience that is malformed or misinformed will err. I'll give you a clinical example. A conscientious physician may fail in his duties to relieve a patient's debilitating pain because he has not been trained to pay close attention to and work hard to address pain. Alternatively, he may fail because he incorrectly interprets the patient's behavior as drug-seeking and malingering. The conscience as a human faculty is both limited and fallible. Yet, however fallible, conscientious refusals are, I think, a logical and necessary consequence of physicians exercising discernment or clinical judgment.

It has long been recognized that medical decisions cannot be reduced to doing what patients want or even to clinical algorithms, rules of thumb, and scientific data. This is in part because the application of medical science always embodies and expresses normative ideas about the body and what it means to be human, to flourish, and to fulfill our obligations to one another. Science can neither provide these ideas nor settle disagreements about them. In addition, even if there were agreement about these underlying moral issues, physicians still must consider and weigh up innumerable different factors, probably many of them unconsciously, in order to discern how best to seek the health of a particular patient in a particular context, all things considered.

This task is almost always attended by ambiguity and uncertainty, and it requires what Aristotle called phronesis or practical wisdom, which in the practice of medicine has been called good clinical judgment. If physicians are to exercise clinical judgment in seeking their patient's health, they will necessarily refuse some patient requests.

. . .with respect to the present controversies, it cannot be that conscientious refusals per se are ethically problematic. What we are after are criteria by which to distinguish those refusals that are consistent with physicians' professional obligations from those that contradict those obligations. To find such criteria, we have to figure out what in fact physicians are obligated to do.

So, with respect to the present controversies, it cannot be that conscientious refusals per se are ethically problematic. What we are after are criteria by which to distinguish those refusals that are consistent with physicians' professional obligations from those that contradict those obligations. To find such criteria, we have to figure out what in fact physicians are obligated to do.

We might start with the obligation, as Dr. Pellegrino put it at the end of the morning session, the obligation that has been self-evident to people from virtually every culture and moral tradition throughout the centuries; namely, the obligation to care for the sick so as to preserve and restore their health. The Hippocratic Oath states, "Into whatever houses I enter, I will go into them for the benefit of the sick," and this universally recognized obligation still provides a powerful criterion by which we can discern that some refusals, however conscientious, are incompatible with good medical practice.

For example, the physician who refuses to care for patients with HIV because of antipathy towards homosexuals or for black patients because of racial prejudice or for criminals because of revulsion at their crimes thereby violates, in my understanding, his or her constitutive professional obligations to seek the health of patients precisely because they are sick without regard to their other characteristics. However, this obligation to seek health does not provide a criterion by which to condemn the sorts of conscientious refusals that have stirred contemporary controversies.

Rather, as biomedical science has expanded, it has made possible many uses of medical technology that are not so obviously directed to preserving and restoring health. Examples include terminal sedation, growth hormone for short children - or, as we have learned, for professional athletes - cosmetic surgery, most assisted reproductive technologies, elective abortion, and others. Yet the paradigmatic example of such interventions and the one that continues, not surprisingly, to animate disputes about conscientious refusals, is contraception.

In 1979, twenty years after the FDA approved the first oral contraceptive, Mark Siegler and Anne Dudley Goldblatt wrote the following: "The oral contraceptive medication was the first prescription drug that was and is, in effect, a self-prescribed treatment. Patients - i.e., medical consumers desiring elective medication - demanded that physicians prescribe the contraceptive pill. Other popularly self-prescribed medications soon followed and came to be seen as appropriate solutions for treatments for problems previously considered individual or social concerns, but in any case not biological abnormalities or specific diseases."

It is not surprising that physicians became the purveyors of these technologies. They had the scientific expertise and the legal authority to manipulate the body. However, from the beginning many within the profession have argued that physicians have no business pursuing ends other than health, and despite the widespread use of these technologies some have always refused to provide them. For a long time such refusals were uncontroversial. The medical profession has traditionally given wide latitude to physician discretion in areas of disagreement. Professional codes have consistently stated that physicians are not obligated to satisfy patients' requests for interventions that the physician does not believe are in the interest of the patient's health. In this respect, and notwithstanding claims to the contrary, physicians who refuse to provide such technologies today are not claiming new freedom from old professional obligations.

Physician refusals have become newly controversial, I would argue, because the emergence of a new technology - in this case postcoital contraceptives - has intensified an old concern about patients having access to reproductive services. For better and worse, physicians do have exclusive license to administer technologies by which millions of Americans have come to order their lives - and, in all fairness, have come to order their lives in a conscientious fashion. With respect to most of these technologies, if one physician will not provide what a patient seeks, the patient can go to another physician who will. The patient incurs relatively modest costs as a result of the physician's refusal.

Postcoital contraception is different. It works only if administered within a brief window of time. If a woman seeks emergency contraception after intercourse and her physician refuses to prescribe it or her pharmacist refuses to dispense it, she may get pregnant when she would not have otherwise. In response to reports of such refusals, a chorus of different writers has argued that doctors and pharmacists must provide or facilitate access to all legal and professionally accepted medical technologies, notwithstanding their moral objections.

Now, here I'm going to part ways with my colleagues here in that these arguments lean heavily on a moral distinction and tension between the personal and the professional. That's right in the title, for example, with Professor Brody 's talk. Whether this tension is posed as personal moral values versus professional ethical obligations or personal conscience versus professional conscience or, in the case Professor Brody described, duties related to personal versus professional integrity.

Health care professionals who refuse to provide what patients request, the arguments go - or, to be fair, refer for or facilitate access to those things at patients' request - thereby allow their personal considerations to trump their professional obligations.

Unfortunately, this pitting of personal versus professional tends to beg the relevant moral question, because unless and until we can specify our professional obligations, we cannot know whether they are being violated, nor can we know which obligations are merely personal.

Unfortunately, this pitting of personal versus professional tends to beg the relevant moral question, because unless and until we can specify our professional obligations, we cannot know whether they are being violated, nor can we know which obligations are merely personal.

In these debates, it seems to me, everything turns on how we define the substance of our professional obligations, because at the heart of every controversy about physician refusals lies a debate about what medicine is for. As biomedical science generates technologies that people desire to use that they highly value, questions are raised as to whether those uses are really directed at health objectively defined. If not, then some argue for a broadening of the concept of health to justify the use of the new technology or they argue that physicians are obligated to pursue other goals in addition to health.

In his 1975 essay "Regarding the End of Medicine and the Pursuit of Health," Leon Kass noted, "It is ironic, but not accidental, that medicine's great technical power should arrive in tandem with great confusion about the standards and goals for guiding its use. When its powers were fewer, its purpose was clearer." Several years later, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research - quite a mouthful; I'm glad that's been revised - echoed this observation. Citing Siegler, the Commission wrote in 1982:

Judgments of conscientious persons have become divergent and perplexed and societal consensus does not exist. No longer are the proper ends and limits of health care commonly understood and broadly accepted; a new concept of health care, characterized by changing expectations and uncertain understanding between patient and practitioner, is evolving. The need to find an appropriate balance of the rights and responsibilities of patients and health care professionals in this time of change has been called the critical challenge facing medicine in the coming decades.

And if today's forum is any indication, it seems the challenge remains.

Those who frame conscientious refusals, I would argue, as a conflict between personal values and professional obligations thereby take one side in a debate they rarely acknowledge.

Those who frame conscientious refusals, I would argue, as a conflict between personal values and professional obligations thereby take one side in a debate they rarely acknowledge. For example, Chervenak and McCullough, two very prominent ethicists in the area of obstetrics and gynecology, claim that conscientious refusals violate physicians' duty to protect and promote the health-related interests of patients. Professor Brody and Susan Night in their essay in the booklet claim that pharmacists who refuse to make arrangements for patients to receive emergency contraception violate their professional duty to dispense medications that are, in the authors' terms, medically indicated for the patients' condition. The ethics committee of the American College of Obstetricians and Gynecologists also criticizes those who fail to provide medically indicated treatments. Unfortunately, these claims beg the question they propose to answer, because they do not address disagreements about whether the interventions in question are really health-related. To put it another way, we cannot know whether something is medically indicated unless we know what medicine is for, whether, for example, the patients' condition is one which medicine properly treats.

In these critiques, if authors do not beg physicians' obligations, they often assert obligations that are themselves highly disputed. For example, Chervenak and McCullough criticize physicians who disclose the reasons for their conscientious refusals to patients. They argue that such disclosures violate an ethical consensus that physicians should be nondirective in their counsel to patients. Yet, we can see that no such consensus exists by turning to the paper on enhanced autonomy by Professor Brody and Timothy Quill who there argue that physicians fail to use their power appropriately when they withhold their guidance and that this failure reflects a misunderstanding about the moral requirements of respecting patient autonomy.

Now, the ACOG Ethics Committee opinion also interprets uncontroversial physician commitments, I would argue, in novel and controversial ways. For example, the Committee invokes respect for patient autonomy but without explanation amplifies it to imply respect for the choices patients make and a "fundamental duty to enable patients to make decisions for themselves." Moreover, the Committee replaces the objective references for the concepts of health and harm. It asserts that harm cannot merely be measured with reference to bodily health but also with reference to "well-being as the patient perceives it." It does not attempt to demonstrate that physicians must provide particular interventions if they are to preserve and restore patients' health. Rather, and in a telling use of language, the Committee asserts that physicians are obligated to provide - and here again I'll quote several of these phrases: "to provide reproductive technology..., health resources..., professional services..., standard reproductive services that patients request..., and safe and legal reproductive services..."

A comprehensive treatment of the merits and weaknesses of each of these claims is beyond the scope of my comments. It's perhaps enough to point out that there is even less consensus about these purported physician obligations than there is about the controversial practices which the physicians are refusing to provide.

A comprehensive treatment of the merits and weaknesses of each of these claims is beyond the scope of my comments. It's perhaps enough to point out that there is even less consensus about these purported physician obligations than there is about the controversial practices which the physicians are refusing to provide. Moreover, and I think more problematically, these purported obligations depend on a provider-consumer ideal for the doctor-patient relationship that has been widely criticized as being insufficient for, and even corrosive of, the practice of medicine. Siegler and Goldblatt drew the connection in 1979, warning that the demanding patient presents a serious danger to clinical medicine. They continued: "The demanding patient denies that the physician's responsibilities and expertise have any relevance except insofar as this coincides with the patient's desires. The demanding patient inverts the traditional model and makes the physician a passive agent. The patient proposes; the physician provides. The physician becomes a technician practicing under the direction and control of his or her client."

In 1982, the President's Commission report titled Making Health Care Decisions echoed Siegler and Goldblatt's concern, and over the ensuing three decades a series of influential clinicians and ethicists who disagree on a great many other substantive moral questions have agreed that the pendulum has swung too far away from physician paternalism toward an emphasis on patient autonomy that amounts to what the President's Commission called "patient sovereignty."

In the patient sovereignty model, or what Quill and Professor Brody called the independent choice model, the patient proposes, the physician provides. The physician has effectively lost both moral agency and responsibility. . . Arguments for reining in conscientious refusal depend on this latter model being the right one.

In the paternalism model, the physician ordered, the patient obeyed. After the patients' rights movement, the physician proposed, the patient chose or gave consent. In the patient sovereignty model, or what Quill and Professor Brody called the independent choice model, the patient proposes, the physician provides. The physician has effectively lost both moral agency and responsibility.

Arguments for reining in conscientious refusal depend on this latter model being the right one. Only if the physician-patient relationship is one of provider-consumer or technician-client can patients' legal right to seek biomedical interventions imply that physicians have a professional obligation to provide what patients seek. Only then can respect for autonomy imply nondirective counseling and a fundamental duty to enable patients to make decisions for themselves. Only then can informed consent be redefined as informed choice. Only then can physicians' obligation to care for the sick be exchanged for an obligation to provide health care services toward the goal of maximizing well being as the patient perceives it.

Some would welcome the prospect of physicians answering to their patients regarding what is good for them. After all, if these controversial technologies are not directly related to restoring health, they are at least medical commodities - health care services, to use the prevalent language - and physicians have no particular expertise or standing to determine how autonomous individuals put non health-related commodities use. An independent choice model for the doctor-patient relationship would improve access to these services while reducing patients' risk of surprise and embarrassment. The model would bring simplicity, efficiency, choice and control. If some physicians do not like providing these services, they can quit or find another clinical specialty.

That is one option. We have a choice which will be made through all of the instruments of politics.

My point here is that it is a consequential choice. The profession can continue to ask its members to commit themselves to an objective goal, namely health, that is not subject to wholesale revision. If this route is taken, the profession must allow, from my understanding, conscientious refusals where there is reasoned dispute about whether an intervention is consistent with that goal. Or the profession may constrain the scope of conscientious refusals and move toward a provider-consumer model in which physicians' moral and clinical judgment is irrelevant to their task of providing what patients lawfully seek. We cannot have it both ways.

. . .any policy that constrains the scope of conscientious refusals thereby erodes the possibility of conscientious practice.

And to close I'll describe three logical - I think logical, if unintended - consequences of taking the latter route to argue that if we choose it we may lose more than we gain. First, any policy that constrains the scope of conscientious refusals thereby erodes the possibility of conscientious practice. It seems obvious that patients want their physicians to be conscientious insofar as possible. Few would respect or desire the care of physicians who are in the habit of doing things they know to be unethical. Fortunately, individuals from virtually all moral traditions and communities can conscientiously and enthusiastically commit themselves to caring for the sick. That is one reason why the profession of medicine has been able to maintain both prestige and a semblance of unity in a society made up of many different moral communities. Yet if physicians must be willing also to participate in contraception and sterilization, those who believe what the Roman Catholic Church has taught for centuries about the human body and sexuality, and those who believe that physicians should aim at health and nothing else, will no longer be able to practice conscientiously.

If physicians are required to refer patients to abortionists - to those who provide abortions - when requested, those who believe that such referral makes them complicit in a gravely immoral action will have to quit. And so the process goes.

Every time the scope of conscientious refusal is narrowed, the pool of people who can be conscientious physicians is reduced. Eventually, the only ones left will be those who are willing to make all legal medical technology available to be used by patients according to their own judgment.

. . . by requiring physicians to do what patients request, we set physicians and patients at odds with one another.

Second, by requiring physicians to do what patients request, we set physicians and patients at odds with one another. Professor Brody and Timothy Quill argue that in the independent choice model, the physician as a person with values and experience has become an impediment to rather than a resource for decision making. I would add that the patient also becomes a moral threat to the physician, particularly if restrictions on conscientious refusals take on the force of professional or legislative policy. Physicians will then wonder when their patients might, with the backing of legal sanction, ask them to act against their own understanding and do that which they believe is unethical.

Third, patients will lose the basis for trusting that their physicians are committed to their good. Benjamin Franklin once said, "If we restrict liberty to attain security we will lose them both." A similar dynamic is at work with respect to the practice of medicine. If we restrict professional autonomy and physician discretion to preserve patients' interests, we will lose both. Why would that be?

Well, under the old model of paternalism, patients could trust that physicians had committed themselves to the patients' best interests, albeit in a limited way - only insofar as those interests included restoring and preserving health. The patients' rights movement and the rise of the doctrine of informed consent qualified and delimited physicians' commitment to pursue health. Out of respect for persons, it was decided - I think rightly - that physicians are to act only with the permission of the patient. Because health is a relative and not an absolute good, patients are authorized to relativize that good to other concerns such as not being overburdened by medical technology. Yet within these limits, physicians remain committed to health. In the enhanced autonomy model of Quill and Brody, the deliberative model of Emanuel and Emanuel, and the physicians' conscience model of David Thomasma , physicians are responsible for thinking, using discernment, making judgments, providing counsel, and even seeking to persuade patients to make the choice the physician believes is best.

Patients gain technicians, it seems to me - technicians who are committed to cooperation, and they lose healers committed to health. They gain control over physicians, but thereby divest physicians of responsibility. As a result, physicians can wash their hands of patients' decisions so long as the physician gives accurate information and provides technically proficient health care services.

Models that support constraining conscientious refusals differ in a fundamental way. In them patients not only relativize the good of health to other concerns but also define which goods physicians will seek. Patients gain technicians, it seems to me - technicians who are committed to cooperation, and they lose healers committed to health. They gain control over physicians, but thereby divest physicians of responsibility. As a result, physicians can wash their hands of patients' decisions so long as the physician gives accurate information and provides technically proficient health care services.

So one cannot merely constrain the scope of conscientious refusals and leave all else the same. Policies that devalue conscientious practice and/or make it more difficult reduce that which makes the practice of medicine its own reward: the confidence and conviction that what one is doing is very good. This morning Dr. McHugh described working long hours for little pay and yet being very happy at it. Dr. Hurlbut described watching his father spend a portion of each week caring for patients who could not pay for that care and finding that work immensely rewarding and satisfying. If I remember his comments correctly, Dr. Hurlbut you said it stirred in you a sense of the nobility of the practice of medicine.

It seems to me that if physicians surrender their commitment to do only that which they believe is good for their patients' health, they will also surrender the nobility, joy, and other intrinsic rewards of medical practice. Their morale will decline, and I would argue has already declined precisely because the practice of medicine has been literally demoralized.

Where there is ambiguity or dispute about whether a particular practice belongs in medicine, physicians and patients have a respectful and candid discussion so that they can negotiate an accommodation that does not require either to do what they believe is unethical.

There is a better way, I think, that has been iterated again and again by the clinicians and ethicists that I have already mentioned. That way involves conscientiousness and candor on the part of physicians. Where there is ambiguity or dispute about whether a particular practice belongs in medicine, physicians and patients have a respectful and candid discussion so that they can negotiate an accommodation that does not require either to do what they believe is unethical. In this model, physicians would not feign moral neutrality but instead would tell their patients frankly what the options are, which ones the physician is willing to provide, and why the physician recommends one over another.

The scope of permissible accommodations will have to be set through the political process. But I would echo the conclusion reached by the President's Commission in 1982, which is that considerable flexibility should be accorded to patients and professionals to define the terms of their own relationships. This model would encourage policy accommodations that provide reasonable access to controversial technologies without asking physicians to provide interventions to which they object. For example, before the FDA approved over-the-counter sales of postcoital contraceptives, some states had bypassed the need for a cooperating physician by allowing pharmacists to dispense the drug without a prescription. In a forthcoming essay in Theoretical Medicine and Bioethics, Armand Antommaria argues for and provides numerous other examples of policy accommodations that promote patients' interests and access to medical technologies without diminishing physicians' interests in maintaining moral integrity.

. . . unless and until consensus is forged regarding the ends of medicine, refusals of controversial practices cannot be shown to violate physicians' professional obligations. In the meantime, the practice of medicine should be open, I think, to anyone who is willing to unreservedly commit herself to caring for the sick so as to preserve and restore their health.

In conclusion, unless and until consensus is forged regarding the ends of medicine, refusals of controversial practices cannot be shown to violate physicians' professional obligations. In the meantime, the practice of medicine should be open, I think, to anyone who is willing to unreservedly commit herself to caring for the sick so as to preserve and restore their health. In light of deep moral disagreements in our society about the scope and limits of medicine, the profession should invite differences in practice so long as physicians are candid about their practices so that patients can effectively participate in medical decisions. Conscientiousness, when accompanied by candor and respect, gives a limited ground for patients to trust physicians as they work out accommodations in the face of genuine disagreement about how to apply medical science toward the patient's good.

Thank you.

CHAIRMAN PELLEGRINO: Thank you very much, Dr. Curlin, and thank you also to the other panelists for being so very, very punctual and bringing us to the point of our break. We're going to break now and then on return at 3:45 we will hear from Dr. Robby George, who will open the discussion for the rest of the Council members. [. . . R.P. George]

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.