Reconciling Patient Choice With Physician Conscience

• Publication year: 1997
• Pages: 87
• Citation: Vol. 26 No. 11 Pg. 87

26 Colo.Law. 87 Colorado Lawyer 1997.

1997, November, Pg. 87. Reconciling Patient Choice with Physician Conscience

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87

Vol.26, No. 11, Pg. 87

The Colorado Lawyer
November 1997
Vol. 26, No. 11 [Page 87]

Specialty Law Columns
Health Law Forum
Reconciling Patient Choice with Physician Conscience
by Casey Frank

The gentle mind by gentle deeds is known.
Edmund Spenser1

The medical profession deals with ultimate issues of life and death. Of necessity, courts intervene in these matters to preserve life, protect the innocent and vulnerable, prevent suicide, and uphold the integrity of the medical profession.2 While courts emphasize physicians' duty to treat their patients, in some situations physicians have a right to object to a request for treatment3 when patients make therapeutic choices that their physicians do not support for moral or religious reasons

These conscientious objections qualify physicians' duty of care toward their patients. This duty extends to the limits of physicians' abilities and corresponds to patients' informed consent,4 but begins only after the physician-patient relationship is established.5 Once established, deviation from good medical practice can expose a physician to professional discipline,6 financial liability,7 or even criminal prosecution in extreme cases.8 A conscience-based objection that is not legally protected and results in harm to a patient also may constitute a breach of the physician's duty to the patient and result in liability to the provider. Thus, conscientious objections like situations where patients act against medical advice are limited exceptions to the therapeutic alliance between physicians and patients.9 They are protected only when authorized by a specific law, and only if they do not harm patients.

This article highlights the provider-patient relationship, where the provider is either an individual or an institution.10 Analogous conflicts also arise between physicians and their employers, where the relative rights of the parties must be accommodated. Some relevant laws protect physicians both as physicians and as employees.11 However, distinctive employment-law principles also affect those cases, such as the reasonable accommodation of employees and the undue hardship of employers. Those issues cannot be adequately covered here.12

Background

As an example to the above, if a patient elects to have a first-trimester abortion, federal law broadly protects a physician's refusal to perform it.13 In contrast, however, consider the pregnant patient who requests an ultrasound with the intent to abort a female fetus, or the deaf couple that intends to abort a hearing child.14 Although the physician may decline to perform the abortion itself, the physician cannot simply assert a conscience-based objection to performance of these tests because no law privileges the objection. If harm to the patient were to result from the failure to test, such as due to an undiagnosed pathology, liability for the physician may follow, unless referral and transfer protocols are meticulously observed to fulfill the patient's needs.

The question whether a provider has a right to object to treatment on moral or ethical grounds is similar, in some respects, to the situation where a patient requests treatment that a physician cannot endorse for medical reasons, and the patient acts against medical advice.15 For example, a patient may request, directly or through a surrogate, that resuscitation efforts be made in the event of cardiac arrest. A physician may validly refuse if treatment would be so futile that no survivors have been reported in similar situations.16 However, in contrast to a conflict between provider and patient over appropriate medical treatment, in the case of a conscience-based objection, physicians are requesting deference to their own needs, rather than the patient's, based on moral, ethical, or religious grounds. In both situations, to avoid liability, physicians must avoid patient abandonment, a well-known concept discussed at the end of this article.

The likelihood of controversy in this area has been increased by modern advances in medicine that present novel treatment choices about which there is no social consensus.17 Although adult-human cloning is a popular topic of discussion, it currently offers few treatment choices.18 Further, a ban on human cloning is in progress,19 so its part in this issue has yet to emerge.

Development of the issue of tissue transplants between species, or xenotransplantation, is more advanced. Baby Fae survived briefly with a baboon heart in 1984. More recently, patients have received baboon livers and marrow,20 and implants of pig cells to treat Parkinson's and Huntington's diseases have been reported.21 Even if medical concerns about rejection and viral contamination were satisfied, physicians who support animal rights might morally object to the use of such involuntary, nonhuman donors.22 Xenotransplantation from pigs also might breach Jewish or Islamic laws about using pork. If promising treatments like these become the norm, their usefulness could limit moral objections, because a refusal to use them would deprive patients of good medical practice. Federal regulations covering this field have already been drafted, without any reference to moral concerns.23

Physician Authority and Patient Autonomy

Historically, physician beneficence toward patients was the controlling principle of medical practice. Not until 1980 did the American Medical Association's Principles of Medical Ethics mention patients' rights.24 Since that time, patient autonomy has become the ascendant ethic.25 Physician beneficence does not inherently conflict with patient autonomy. After all, physicians alone possess the information and judgment that inform and empower patients to make wise treatment choices. Physicians must adequately inform patients to facilitate meaningful informed consent.26 Accordingly, physician beneficence actually serves patient autonomy.27

Autonomy is most commonly expressed as the right to refuse treatment.28 As a New York court stated in 1914, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body. . . ."29 Autonomy has expanded to encompass the right of patient surrogates to refuse treatment,30 but patient autonomy is not without limitations. Indeed, while principles of patient autonomy afford a qualified right to die,31 the U.S. Supreme Court has recently ruled that states can limit that right to the avoidance of treatment; the U.S. Constitution does not provide a right to affirmative assistance in dying.32

Further, patient autonomy does not extend to a right to demand treatment that conflicts with a physician's sound professional judgment. For example, in a closely watched case, a patient's daughter sued Massachusetts General Hospital and its staff for issuing a do-not-resuscitate order for her comatose, terminally ill mother. Although the plaintiff alleged no explicit permission for the order was obtained, the defendants contended that further treatment would have been medically futile. The jury agreed and refused to find the defendants negligent with respect to the patient's death.33

As the right to patient autonomy increases, a conscience-based right of physicians to decline to treat serves to balance authority between physicians...