Sunday, September 27, 2009

Considering Provider Autonomy and Conscientious Objection

This is adapted from a Lunch and Learn presentation sponsored by my hospital's Ethics Committee.

Our topic is provider autonomy; or as it is often phrased, “conscientious objection.” That is, objecting to some act in professional practice on grounds of conscience.

The standard principles we use in medical ethics are the Georgetown Mantra:

I found myself wondering just we might think of comparable categories from a provider’s point of view.

AUTONOMY: From a patient’s perspective, “autonomy” is a matter of the patient’s rights - primary the rights to choose or decline care, and to participate in decisions.

We would also say that a provider has “autonomy” – rights in exercising professional judgment. As a general principle, a professional has the right to accept or not accept a patient, and not to provide inappropriate care. For example, these are the provisions of the American Medical Association’s (AMA) Code of Medical Ethics:

(3) In situations not covered above [emergencies, what the AMA calls “invidious discrimination,” and certain contractual arrangements], it may be ethically permissible for physicians to decline a potential patient when:
(a) The treatment request is beyond the physician’s current competence.
(b) The treatment request is known to be scientifically invalid, has no medical indication, and offers no possible benefit to the patient (Opinion 8.20, "Invalid Medical Treatment").
(c) A specific treatment sought by an individual is incompatible with the physician’s personal, religious, or moral beliefs. (From section 10.05)

A similar provision is found in the Code of Ethics for Nurses of the American Nursing Association (ANA):

Where nurses are placed in situations of compromise that exceed acceptable moral limits or involve violations of the moral standards of the profession, whether in direct patient care or in any other forms of nursing practice, them ay express their conscientious objection to participation. Where a particular treatment, intervention, activity, or practice is morally objectionable to the nurse, whether intrinsically so or because it is inappropriate for the specific patient, or where it may jeopardize both patients and nursing practice, the nurse is justified in refusing to participate on moral grounds. (From Section 5.4)

NON-MALEFICENCE: This is our expression of the principle, “First, do no harm.”

From a professional’s perspective, we have a clear image of what harms a patient. Indeed, one of the clear categories in which a professional can refuse to provide an intervention is when the intervention will harm the patient. However, in the most common situations where conscientious objection becomes a matter of contention, it is because the patient is convinced that the given intervention will not harm the patient, but instead will provide benefit.

That raises another question: what harms the professional? What are the risks that the professional faces – personal, financial, legal, moral? Many physicians, certainly, have anxiety about lawsuits for inappropriate care, and most commonly for not providing enough care or that one alternate intervention. A few providers have faced physical risks in their practice, and in their choices about interventions to provide or deny. We are familiar with the recent death of Dr. George Tiller, assassinated by a person who felt justified by Dr. Tiller’s practice of providing abortions in less than perfect circumstances. However, it applies no less to the doctors and nurses who served AIDS victims before we knew what it was; or to the doctors and nurses who have taken care of swine flu victims before we knew its mortality rate.

Which brings us to BENEFICENCE: which for patients we traditionally phrase as acting in the patient’s “best interest.” Again, professionals may run into conflict with patients about the patients’ best interest.

That said, we can ask the question as to what is in the best interest of the professional. Most often we consider answers to that question that are about income or about freedom to practice. Those are enhanced by the licensure, registration, and certification that limit the number of competitors in our various practices. What other categories might be appropriate? For example, what is in the best interest of the professional’s integrity? What about social benefits of professional practice? We do, after all, receive a certain level of social benefit as professionals, a certain level of social standing.

JUSTICE is the final category of the Georgetown Mantra. I usually contrast this with Autonomy. If Autonomy is about the patient’s rights, Justice is about how this affects the rest of us. So, it is under the category of Justice that we discuss limited resources, costs of care, and other social concerns.

Justice is also an issue for providers. While there is Autonomy in practice, there are also professional expectations of service. It comes under the broad category of “fiduciary responsibility,” which is not solely about money. The word is based in the Latin for faith, fide; and it speaks of keeping faith with the patient and acting in the best interest of the patient, even if it is not in the interest of the provider.

This is also expressed in the Codes of Ethics of the various professions. There are limits to autonomy in professional practice. The various codes of ethics agree, for example, that there is a requirement to provide care in an emergency that transcends the principles of the provider. Consider, for example, the passage above from the ANA Code of Ethics for Nurses. After noting that under appropriate circumstances, “the nurse is justified in refusing to participate on moral grounds,” the very next sentence states, “Such grounds exclude personal preference, prejudice, convenience, or arbitrariness.” In a similar vein, we can note that the passage above from the AMA Code of Ethics is from a section titled, “Potential Patients.” The implication is such decisions can be made before the doctor-patient relationship is established. Once established, however, the doctor’s fiduciary responsibility limits autonomy. So, “Opinion 8.115 - Termination of the Physician-Patient Relationship” states,

Physicians have an obligation to support continuity of care for their patients. While physicians have the option of withdrawing from a case, they cannot do so without giving notice to the patient, the relatives, or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured.

Note this principle that when a professional wishes to decline care there is an obligation to assist the patient until an alternative is found, and perhaps to assist the patient in finding that alternative. Paragraph 5.4 of the ANA Code concludes, “The nurse is obliged to provide for the patient’s safety, to avoid patient abandonment, and to withdraw only when assured that alternative sources of nursing care are available to the patient.”

So, where does this leave us? We use these categories to consider the ethical principles that serve the needs of patients. Do these categories give us a framework in which to discuss provider rights and conscientious objection? How would we analyze specific instances in these categories? What do you think?


Anonymous said...

I find this a fascinating discussion, but way over my head. A couple of hypotheticals.

What if a person has a std, should the doctor be required to recommend condoms? The nearest doctor is 40 miles away.

Can a pharacist refuse to stock any birth control medicines or devices because the pharamists is Catholic?

These questions are way below the level of your post, but here they are:)

BTW, at 76 the questions are kind of theoretically, but what would I say if asked by a 20 year old. No one has ask me. Jack

Marshall Scott said...

Actually, Jack, while not the specific issues that brought about this presentation, these are certainly appropriate. In fact it was issues of pharmacists and birth control and distance that became the presenting issue, leading both an executive order in Illinois requiring pharmacists to distribute birth control pills regardless of personal beliefs, and to the executive order of the Bush Administration that not only consolidated existing protections for professionals but also seemed to extend them to all employees regardless of job description.

Note that this is really acute in areas where professional care is, as it were, "few and far between," and particularly to the independent pracititioner. A pharmacist in a chain drug store functions under a contract for employment. So, he or she would have little control over stock, and rights of conscientious objection would be delimited in the contract. Independent pharmacies with competition in town, or with more than one pharmacist on staff, have some opportunity to refer to another if there is individual objection; and professional codes of ethics all seem to expect (if not explicitly require) referral when the individual professional objects. (I can't speak to whether individual states might also have referral requirements in their licensure requirements.)

So, if you're the only pharmacist in the only pharmacy in a county in southwestern Kansas or the panhandle of Oklahoma, working in a pharmacy that you own as a small business, what is the requirement? The principle of fiduciary responsibility would seem to call for some provision, even in the face of conscientious objection. Do we make a distinction in that between condoms (which don't require a prescription), birth control pills or diaphragms (which require a prescription, but aren't so time sensitive), and "morning-after" medications (which both require a prescription and are time sensitive)? Is this an emergency," and who decides that(again, particularly important for "morning-after" medications)?Are there other resources at all (an emergency room, or a physician with samples)? If no other resources, what are the requirements under the rubric of "public health," for, again, licensure allow restriction of trade to professionals in exchange for some public benefit. (And, of course, this doesn't address how this might affect the relationships between the pharmacist and referring physicians.)

Again, professional standards seem to require some provisions, and other circumstances (contracts, state regs, etc.) might make requirements more explicit.

As to the physician, the AMA Code is more explicit; and once again state public health regulations might be more explicit, since an std is a public health issue (we saw this over the past generation as we discovered what AIDS was, and what living with it meant). That physician, having agreed to care for the patient, is expected to make the recommendation, and perhaps say where they might be obtained. Now, I don't know that requires actually supplying the condoms (but, then, all that really requires is quarters and a local truck stop). However, the AMA Code is clearer than some.