INTRODUCTION I. THE PROBLEM WITH REFUSALS A. Who is Harmed? B. What is the Harm? 1. Physical Harms 2. Emotional Harms 3. Financial Harms 4. Harms to Public Health 5. Violation of Patient Rights C. How Common Are Refusals and How Often Are Patients Harmed? II. ORIGINS OF THE PROVIDER'S DUTY A. Duty in Licensing B. Ethical Duty 1. American Medical Association 2. American College of Obstetricians and Gynecologists 3. American Pharmacists Association. C. Fiduciary Duty D. Recognition in Malpractice and Tort Law E. Duty of the Institution III. INADEQUATE PROTECTION OF PATIENTS A. Legal Protections for the Right to Refuse and Impact on Patients' Rights B. Limitations of Title VII IV. CONCLUSION: TOWARD PATIENT-CENTERED CARE A. Amendments to Existing Conscience Clauses B. Enforcement of Current Protections 1. Informed Consent and Other Legally Enforceable Duties 2. Title VII C. Patient Education D. Provider Education INTRODUCTION
This Article argues that patient-centered care is the model from which refusal policy should be derived. By entering the medical profession, practitioners agree to a set of ethical principles which ensure that they will put the patient's interests before their own. Medical professionals have superior scientific knowledge and skill to that of a patient, which puts them in a position of trust and influence. Modern medical practice continues to move away from a model of paternalistic physician control over patients towards patient decisionmaking, which requires the professional to impart enough medical information for the patient to make an informed decision. This Article argues that it is ethically improper for medical practitioners to use their position of influence that results from superior scientific knowledge to impose their moral preferences on the patient. Patient-centered policy means that the primary goal of medical policy is to ensure patient well-being, with secondary goals such as enhancing medical workforce satisfaction. A refusal policy should maximize the situations in which an individual practitioner can follow his moral code without interfering with the patient's rights to make moral and medical decisions and to access care.
A policy allowing for provider refusals is only appropriate when it averts conflict between patient and practitioner morality by helping practitioners to step away from treatment to which they object without compromising the patient's ability to access the treatment. However, where a conflict is inevitable, the patient has a superior claim to the primacy of her health-care decision over the practitioner's decision to refuse because the primary goal of medical care is patient welfare; medical practitioner welfare is secondary. In practice, these twin principles should result in a policy where practitioners retain the duty to ensure that patients are provided with sufficient medical information to allow the patient to make informed medical decisions for herself and to ensure that the patient has. access to care; these duties cannot be abrogated by physician or institutional objection. At the same time, the individual professional retains the right to pass these duties on to another non-objecting practitioner; he does not have the right to allow his moral objection to stand as an obstacle to the patient obtaining information or care.
To actualize a system where medical professionals are generally able to refuse without interfering with patient care, a refusal policy cannot shift the consequences of professionals' refusals to patients. Medical ethics place a duty on practitioners to place the patient's interests above their own, but ethics alone do not ensure that practitioners will set up systems to ensure that patients are not harmed by refusal if there is a legal system that shifts the damages resulting from such refusals away from the practitioner and onto the patient. Medical professionals must take responsibility for their own moral guideposts by accepting the burdens that result from such beliefs. A system that keeps legal burdens, such as liability and professional consequences, on professionals who breach their duties towards patients incentivizes practitioners to ensure that systems are in place to protect the patient from harm as a prerequisite to the practitioner's right to walk away from services to which he objects.
Part II describes the problems that result when practitioners place their moral positions over the patient's welfare by refusing services without ensuring that patient protections from harms resulting from their refusals are in place. Part HI describes bases for the professional's duty to provide accurate and unbiased medical information, referrals, and treatment in emergencies. Part IV discusses how current refusal policy contravenes medical ethics by shifting the consequences of refusal from practitioners to patients. Part V provides recommendations for public policy on refusal that would provide maximum protection for practitioners' right to act in accordance with their consciences without abrogating their professional obligation to put the patient first.
THE PROBLEM WITH REFUSALS
Imagine your wife is nineteen weeks pregnant when her water breaks. You rush her to the emergency room. The doctor comes out and tells you that nothing can be done to save the baby. You ask how your "wife is doing. The doctor says that she will not be stable until they remove the fetus, but the hospital's ethical rules prevent them from doing so until there are no fetal heart tones. Instead, she will be transferred to the intensive care unit and will receive blood transfusions until the fetus dies in utero. Only then will she receive the treatment she needs. (1)
Imagine your sister has been raped. She goes to a pharmacy for emergency contraception, which is an FDA,approved contraceptive that can be taken after unprotected sex. (2) She can see it behind the counter, but the pharmacist refuses to give it to her because he thinks it is immoral. (3) She is distraught, yet she continues her search for the medication in an effort to reduce her risk of becoming pregnant from the traumatic act of violence. (4)
Imagine you are a newlywed, and you discover that you have testicular cancer. You and your wife want kids, so you ask the doctor how treatment is going to affect your fertility. He tells you not to worry about it. You get the treatment without taking steps to store your sperm, thinking that your doctor certainly would have told you if the treatment had a chance of reducing your fertility. In reality, your doctor is morally opposed to all assisted reproductive technologies and thinks that discussing these procedures with you would make him complicit in the sin.
Each of these situations is possible when providers are allowed to place their religious and moral beliefs above medically accepted standards of care and patients' needs.
[Major] health care provider organizations--including the American College of Obstetricians and Gynecologists, the American Hospital Association, and the American Public Health Association--have expressed concerns about the impact of refusals on patient care, (5) [yet] some providers still assert a right to deny patients medically appropriate health care services, information and referrals. (6) While providers have a right to their moral beliefs, this right does not allow health-care providers to violate their professional and legal obligations to the patient. Policies on health-care provider refusals should be carefully crafted to maximize the rights of individuals to their beliefs without extending this "protection" so far that it prevents patients from getting the medical care or information they need.
Who is Harmed?
There are three types of refusals: refusal to provide treatment, refusal to provide information and refusal to provide referrals. Each type of refusal can be undertaken by different types of providers. Providers include individuals, such as doctors, nurses, and other medical staff, as well as institutions, such as religiously-affiliated hospitals. (7) The problem of refusals affecting patient care extends beyond hospitals and other institutions that actually provide health care. (8) "Like hospitals, managed care plans may also be religiously-affiliated, and exclude coverage for reproductive health services." (9) Women have also been subject to refusals to sell them emergency contraception and ordinary birth control in pharmacies. (10)
People often ask of those who are refused health-care services-"Can't they just go somewhere else?" Unfortunately, the answer is often no, particularly when the refusing entity is an institutional actor, such as a hospital or pharmacy, rather than an individual practitioner. When professionals refuse to provide treatment, there may be nowhere else in the patient's community where she can go or going elsewhere may be financially out of reach. (11) Furthermore, a patient who is refused information may not know that she has been denied medically desirable treatment options. (12) A patient who is refused a referral may be prevented by the refusal itself from going elsewhere for the service if, for example, her managed care plan requires a physician referral. (13)
The consequences of refusals are particularly burdensome to marginalized populations. Women are disproportionately burdened because reproductive health services are the subject of the vast majority of refusals. Low-income people, people of color, Lesbian/Gay/Bisexual/ Transgendered (LGBT) people, and people who live in areas with few accessible providers also suffer disproportionately. (14) A person in a rural area may need to travel long distances in order to get needed care; if the closest provider refuses, she may be left without an alternative source of care. (15) Even in urban areas, a rape survivor who is refused emergency contraception may have to take public transportation or hire a taxi to try to find a...