In overturning the Trump administration’s attempt to expand the so-called conscience rule for health care workers this week, a federal judge has brought renewed attention to a long-simmering debate in medicine over when doctors can decline to provide treatment to patients without abdicating their professional responsibilities.
The revised rule, issued last spring by the Department of Health and Human Services, was aimed at protecting doctors, nurses, and others from, in the words of HHS, being “bullied out of the health care field” for refusing to participate in abortions, gender reassignment surgery, or other medical procedures based on religious beliefs or conscience. Critics of the rule charge that it would enable discrimination by allowing providers to deny health care to certain patients, particularly women and LGBTQ+ individuals.
U.S. District Judge Paul Engelmayer ruled that HHS overstepped its authority, though the rule sought to “recognize and protect undeniably important rights.” But what are those rights, and in what circumstances can physicians ethically withhold treatment that a patient wants?
There are three general contexts in which it is permissible and sometimes obligatory to refuse care: when doctors are subjected to abusive treatment, when the treatment requested is outside a doctor’s scope of practice, or when providing the requested treatment would otherwise violate one’s duties as a physician, such as the Hippocratic mandate to “first do no harm.” But none of these rationales can justify physicians denying care based on their personal beliefs.
When patients are abusive
If a patient walks into my office using threatening language or behaving violently toward me or my staff and fails to improve his behavior despite good-faith attempts at redirection, I can ask him to leave without receiving care. Of course, there may be extenuating circumstances. A patient in the midst of a mental health crisis who is abusive clearly requires immediate attention. And a critically ill patient who comes to the emergency room engaging in violent behavior but desperately in need of care cannot be dismissed, as this would cause her immediate harm, though security personnel may be required to assist in the delivery of care. Still, in the absence of urgent care needs, I am within my rights to not provide treatment to an abusive patient rather than allow him or her to continue with behavior that disrupts the care of other patients or threatens my safety or that of other health care workers.
Scope of practice limitations
Doctors should not provide treatment outside their scope of practice. As a cardiologist, I have expertise in treating cardiovascular disease and its risk factors, but I do not manage non-cardiac conditions. If a patient of mine with heart disease asks me for pain medication for a lower back strain or antibiotics for an ear infection, I should decline to provide this treatment because it is outside my area of practice or expertise. I should, however, advise him on how best to proceed by referring him back to his primary care physician.
While that may be an inconvenience to my patient, my providing non-cardiac treatment without being up to date on current guidelines and practice standards presents a real potential for harm. My prescribing the wrong antibiotic, for example, might delay him from getting the right treatment and put him at higher risk for infectious complications, which would violate my duty as a physician to do no harm.
Upholding physician duties
The third context in which doctors can refuse to provide certain treatments deserves a closer look. Patients seek care from physicians not only to treat illness but also to promote wellness and flourishing, and physicians have duties to provide this care to the best of their abilities. These include the imperatives to respect patient autonomy, to improve quality of life and longevity when possible, to alleviate suffering, to promote fair allocation of medical resources, and, perhaps most importantly, to avoid doing harm.
When a patient’s request comes into conflict with these duties, a doctor may need to refuse it — though he or she is obligated to do so with kindness and an appropriate explanation of the rationale.
Consider antibiotics again as an example. If a patient comes to her primary care physician seeking treatment for ear pain and requests antibiotics, but the exam points to a viral rather than bacterial process, her doctor can and should refuse to prescribe antibiotics.
First off, antibiotics are not effective against viral infection and thus provide no benefit. In addition, all medications carry the potential to cause harmful side effects. Prescribing antibiotics in this situation would place the patient at an admittedly small risk of harm with zero chance of benefit.
Second, inappropriate antibiotic prescriptions contribute to the growing problem of antibiotic resistance, which causes harm to society and thus violates a physician’s duty to act as a steward of medical resources.
Opioids offer another example. These medications can provide powerful pain relief, but their use may expose patients to a significant risk of abuse and addiction. As such, they require judicious prescribing. Not all pain warrants their use, and they should not be prescribed to placate patients if they are not indicated, no matter how strongly they are requested.
While a physician’s refusal to prescribe antibiotics or opioids may disappoint a patient and potentially result in negative patient satisfaction reviews, physicians are obligated to do no harm and promote wellness over the dubious metric of satisfaction surveys. The customer may always be right, but the patient is not a customer or a client.
We have seen the pendulum of medical ethics swing from a focus on beneficent paternalism (the doctor knows best) toward a focus on autonomy (the patient knows best). I think the right path lies in between. In a typical patient encounter, after I explain my diagnostic and treatment plan to a patient, I ask if it makes sense and if he is on board. The response is often, “Doc, you’re the boss!” to which I invariably reply, “I am the expert, but you are the boss.”
In other words, the patient’s goals and values should dictate treatment, while it is the doctor’s duty to propose potential approaches that are in line with those values and review options to determine the best path toward achieving those goals. Doctors should not try to force treatments upon patients that conflict with their values, and patients should not try to coerce doctors into providing treatments that are medically inappropriate.
Conflicting physician duties
There are some situations in which professional duties inevitably come into conflict with each other. Several states have legalized physician-assisted suicide, though typically with strict criteria such as the need for multiple physicians to confirm the presence of terminal disease and psychiatric evaluation to exclude treatable mental illness. The ethics of physician-assisted suicide are controversial, with compelling moral arguments on both sides of this debate.
Those in favor cite the imperative to respect patient autonomy or right to self-determination, as well as doctors’ duty to relieve suffering. Those opposed argue that helping a patient take her own life profoundly violates the principle of non-maleficence or avoiding harm. This is a situation in which conscientious objection may be ethically invoked. Doctors may ethically decline to participate in physician-assisted suicide if they believe that doing so would violate their professional duties. That said, they should make a good-faith effort to refer the patient to another physician who might be more inclined to consider such a request.
It is not, however, ethical to refuse a patient’s request for treatment simply on the basis of personal beliefs, including religion. Much like our country’s founding principles that enshrine the separation of church and state, medical ethics must recognize the boundaries between church and medicine.
American moral and legal theory have traditionally embraced the Rawlsian conception of liberty — the idea that individual liberty must be respected and protected until one individual’s action encroaches upon another’s liberty. For example, a person does not have the right to act violently toward another because this action robs the second individual of his right to freedom from violence. Through this lens, the term “religious liberty” is disingenuous in that it actually limits the liberty of patients to receive medical care free from the constraints of a clinician’s religion that his or her patients may or may not embrace.
Here is a secular example to illustrate this point. I am a pesco-vegetarian who has chosen to follow a predominantly plant-based diet for health and environmental reasons, and also because I object to factory farming practices involving the slaughter of animals to produce meat. As a cardiologist, my duty is to provide the best evidence-based heart care for my patients. This, of course, includes counseling them on the significant cardiovascular benefits of a plant-based diet in addition to prescribing medications as needed. But I have no business trying to coerce them into adopting my position on food by trying to morally shame them out of their current habits or by refusing to prescribe a cholesterol-lowering medication because that would enable or encourage their consumption of meat.
I cannot imagine anyone would argue that it would be ethically permissible for me to refuse to treat patients who eat meat after having had a heart attack because I object to their diets. This would be morally (and legally) unacceptable. In the same vein, it is no more permissible for physicians to refuse or alter their care of patients based on religious convictions.
It is unethical for a physician to deny care to LGBTQ+ patients because of personal objections about whom his or her patients choose to love in their private lives. It is unethical to refuse to prescribe contraception to single individuals because of personal or religious objections to premarital or nonprocreative sex.
Abortion is a thornier issue because a legitimate metaphysical argument can be made that life begins at conception and, similar to physician-assisted suicide, performing an abortion could be seen as violating a physician’s duty to preserve life and avoid doing harm. Yet forcing women to carry unwanted pregnancies fundamentally violates their autonomy, and thus their personhood.
Abortion is an essential part of health care in that it must sometimes be performed to preserve the health or life of the mother, and in other cases it is necessary to ensure a woman’s right to self-determination as an autonomous adult. While physicians should be allowed some discretion if they truly believe performing an abortion in certain cases would violate their duties as a medical professional, those who would be unwilling to perform abortions under any circumstances for religious reasons are not well suited for reproductive health care.
When objection is not conscientious
While there circumstances such as the ones I described earlier in which physicians can and should decline to provide treatment, the so-called conscience rule goes too far in its allowances. For example, if a pregnant woman comes to the emergency room at night in distress due to what doctors subsequently deem a life-threatening complication of pregnancy and they recommend termination because her fetus is not yet viable, members of the on-call team cannot morally refuse to assist in her abortion. In this urgent situation, unnecessary delays in care from trying to call in additional staff or refer her to another facility may cause her irreparable harm.
It is not a physician’s job to tell patients how to live according to the physician’s personal code of ethics, whether religious or secular. Nor should a physician withhold treatment from patients simply because they fail to adhere to his or her personal standards of morality. Rather, a physician’s duty is to promote patients’ wellness and flourishing through the application of evidence-based medicine to the best of his or her professional ability. Personal beliefs, religious or otherwise, must not interfere with that.
There is nothing conscientious about doctors objecting to caring for patients when we simply disagree with how our patients live their lives. It is unethical for doctors to bully patients in the name of our personal convictions — a blatant violation of our professional duty. We owe it to ourselves and to our patients to hold our profession to a higher standard.
Sarah C. Hull, M.D. is a cardiologist at Yale School of Medicine and associate director of its Program for Biomedical Ethics.
“When can doctors refuse to treat?”
This assumes the medical procedure at hand is even “treatment”.
What does abortion “treat”? What does permanent genital mutilation surgery “treat”?
“I believe that the Catechism of the Catholic Church allows for a woman to make a choice between herself and her unborn child when the pregnancy involved a serious threat to mother’s life (as in an abruption).”
If I remember correctly (and I may not), the Catholic Church teaches that an unborn human person may not be *directly* killed using surgical or chemical methods. A tragic, natural end for an unviable pregnancy, without direct termination, might be permitted because it is outside of human control. Please correct me if someone has reliable source or more information.
(In terms of shear number, this example is much less common than elective abortions.)
Nice discussion … and only a few typing or grammatical errors. Makes me proud to chip in. It’s funny Sara has us focused on an ear infection, anyhow
all “internists” should be able to give good advice regarding a painful plugged ear. Nose drops is always a good place to start ! Then the liability raises its head. What if the tympanum ruptures ? He ( or she ) can’t fix that. Are we hving fun yet ?
Keep in mind humanity, humility, your expertise, and respect; and don’t shy away from offering help. You can always say, ” I’m not very good at ears . Let me get you started and help you find a PCP or an ENT guy for follow-up.”
PS: I was chairman of my GMS Hosp. ethics Committee for several years.
These discussions are healthy.
It’s the usual modus operandi: conflate abortion (termination of human life) with mundane, albeit uncomfortable, human experiences.
Like when Planned Parenthood had us believe abortion accounts for “3%” of their services.
So Dr Hull, when you have an abortion, if you have or had an abortion, you pick someone who really doesn’t want to do it. Better check the doctor’s outcomes for the procedure.What isolated region does a woman have to live in that there is only a pro-lifer is available for her?
I believe that the Catechism of the Catholic Church allows for a woman to make a choice between herself and her unborn child when the pregnancy involved a serious threat to mother’s life (as in an abruption).
At least for a major religion, only elective abortion is a (grave) sin.
It is hard to respect your opinion, which is all it is, when you don’t respect religion.
Refer to DR . Mull’s post for the rest of what I believe.
Dr. Hull alludes to her avoiding treating an ear infection because of the difficulty of distinguishing viral and bacterial infections and the appropriateness of antibiotic. May I reassure her that at many stages of many infections, none of her colleagues can make that distinction either.
As to appropriate opioids, none of us can positively determine the degree of another’s pain.
Like many situations of late, this issue lacks understanding with regard to what is being debated.
Is it a refusal to provide a specific service (e.g. abortion, gender reassignment, euthanasia, a “cake for a gay wedding”, etc.)? Or is it a refusal to provide medical services to a protected class (LGBTQ, gender, religion, race, etc.) (e.g. a “traditional birthday cake” for a gay person).
It might appear the former was decided in favor of the baker by SCOTUS (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018) in a 7-2 ruling based on “free speech”. So, for example by analogy, you cannot force a Catholic hospital to perform gender reassignment surgery or elective abortions. At the same time, that hospital cannot discriminated against anyone based on protected class status. Confused . . . ?
The HHS revisions in question (45 CFR part 88) were an attempt to clarify the above, in part due to several new provisions from the ACA (2008) that created private rights of action.
Having now lost the opportunity to deal with this in regulation, it defaults to the courts, in which some poor healthcare provider(s) will be forced to defend themselves, likely all the way to SCOTUS.
In the meantime, healthcare providers (like “cake bakers” in the past) should be judicious in how they manage these “hot button” services.
Yes, there’s a huge difference in saying ‘I I will not treat your daughter for suspected UTI because she is Muslim and you are from Yemen’ and saying ‘ I will not mutilate your female child’s genitals because I believe that is neither medically indicated or ethically appropriate, not to mention illegal and permanently damaging to a minor child in many ways.’
Oh my, where to start?Let’s skip abusive patients and outside scope of practice and deal with violating the Hippocratic out. If you read the Hippocratic oath, it says I will not give abortifacents and I will not aid in the taking of life.
positions are professionals not “providers“. we bring technical and ethical judgment to the table as evidenced by your article.
You are correct that Patient should not forced doctors to do treatments that are inappropriate such as antibiotic’s for a cold.I would think you would also agree that we shouldn’t give men just asked her own because they want to have bigger muscles.There are potential harms to both Antibiotic and the hormone.It is also true that giving hormones to people doing sexual transition has significant risk associated with it. How is that different?
I would suggest that physician assisted suicide is controversy or only if you are ethically challenged. Again refer to the Hippocratic oath. If you feel something is ethically wrong why would you be forced to refer to someone else .
our founding principles do not enshrine separation of church and state as you state. The establishment clause says the state may not establish a religion. You should watch the movie “a man for all seasons“.The story of Thomas Moore resisting King Henry VIII and his desire to create a state religion with his own theology (he felt it was OK to divorce or have a marriage annulled so he could remarry). it is the reason for the establishment clause as those who fled England and other European countries with state-sponsored religion did not desire to have that in the new colonies. Separation of church and state is not found in the constitution but rather in the writings of one of the founders.Of course if you say something often enough it sounds true.
It is a strawman to say that physicians with moral convictions refuse care for LGBQT patience. I am sure there is an example somewhere but I doubt that all abortionists keep fetuses in jars in their garage so let’s dispense with generalizations. Refusing to give hormones that have serious side effects or doing mutilating surgery when studies show that many regret having it done is not discrimination.
When did abortion become healthcare? just because nine people in black robes decided that they found a right to abortion in the constitution ( I keep reading and can’t find it) doesn’t make it healthcare. And if you think those nine justices are infallible just remember that nine justices found Dread Scott legal.
another straw man is your emergency room example of an emergency abortion to save a woman’s life. Can you give me an example where that would be the case. You either deliver the baby or treat the medical condition but nowhere does someone do an emergency abortion. that is such a contrived argument.
You have re-defined and misidentified bullying when you suggested having moral objections fits that definition.Much as “hate speech” has come to mean anything that you disagree with.
You say it is not a physician’s job to tell patients how to live but you have no problem telling physicians how to practice and what to think.That also is a strawman because physicians with moral objections don’t tell their patients how to live. Also, one would have to redefine “telling people how to live “as explaining in one’s own moral compass.
Dr. Mull, a placenta may abruptly separate at any stage in pregnancy, putting life of mother and fetus in emergent status for transition to death. Depends on the size of the fetus whether or not he/she may be saved along with the mother. Whether the mother lives or dies depends on the skill of her surgeon and the rapidity with which that skill is applied. The same skill is required for the baby.
I am a highly trained and skilled professional, not a purveyor of commonly available commodities or services. If in my professional judgement someone is asking me to provide a service that I feel is out of my scope, or is not appropriate for that individual, or is morally repugnant to my personal belief system, I am not required to provide that service, either legally or ethically. Placing GGG breast implants in an 18 year old young person who desires to have them, regardless of their gender identification…. Performing FMG on a prepubescent…. Castrating a pubescent or adolescent for gender confirmation or any other reason (besides oncology-related)… Refusing to perform an abortion after gender selection determines the chromosomal gender is unwanted — all of these may be counseled against by the medical professional, who may legitimately refuse.to participate.
I totally agree.
I do not have the expertise to treat an ear infection? I just trained a medical student on family medicine in one month he is an expert on treating URI Pneumonia, Bronchitis, otitis, etc. I train nurse practitioners in 2 months FM and they are up to speed.
A super-intelligent YALe doctor should be up to date with basic in medicine and treating an ear infection is mandatory even for the cardiologist.
You have an MD you should be able to treat those if you are board-certified in Internal medicine. I keep up to date to all cardiology new drugs, psychiatry, endocrine, etc because it is mandatory.
My patients can not afford to go to a cardiologist, endocrinologist, psychiatrist, rheumatologist, ortho, etc. They do not have money for test copay deductible the new reality is sad they can not afford all the doctors. I saw yesterday a patient of mine who was tachycardic because of a huge ear infection and cardiologist increased his beta-blocker and blood pressure medication and send it to me. On the same day 2 doctor visits ask your self it is ethical to increase the cost of health care by not be willing to take care of small problems too? by the way, after ear infection was resolved his pulse and blood pressure return to normal I told him to hold on those
Do drs make it clear to the patients, when setting up the first appt, that they have personal limits to the scope of their practice & whether they are willing to refer patients to others who will provide a wider range of services??
Remember that drs know their colleagues better than women going down a list…
Who knows what will happen in the future if drs don’t make their preferences clear in the very beginning?? Springing it on patients in the middle of a problem IS HIGHLY UNPROFESSIONAL!! Under such circumstances, patients feel that the drs are treating THE PATIENTS’ beliefs as 2nd rate.
Forcing a women to carry an unwanted pregnancy affects the mother’s rights?
How about her right to use contraception which is more appropriate ?
And again the rights of the foetus are apparently non existent
Comments are closed.