Refusing to Treat Patients – When You Want Distance From a Patient’s Infection, Morality, and Politics – Part 2

We return to our discussion of can you refuse to treat a patient.

2. Moral opposition to a treatment

The analysis again starts with the contractual nature of the physician-patient relationship. The patient seeks care and the doctor agrees to provide it. In that idealized situation both parties remain in full agreement on the care.

However, along the way the doctor and patient disagree as to what treatments are “moral.” This raises the question to what extent the doctor may step away from that care. A patient may also seek care from the start that the doctor finds morally objectionable but the patient may not have reasonable alternatives (such as very rural area or a very specialized type of practice).

In this setting the physician is really seeking an opt-out. This is typically provided by what are called “conscience clause” laws, passed by many states.

These began after Roe v. Wade and were originally focused on reproductive issues, including abortion, sterilization, contraception, insemination and IVF. However, these laws have since expanded to all medical care.

Of course, doctors have refused to treat some conditions since there have been doctors. What these laws do that is new is immunize the refusing doctor from liability for the consequences of that refusal.

They also place limits on when there may be such a refusal.

The Idaho statute is a good example: “No health care professional or employer of the health care professional shall be civilly, criminally or administratively liable for the health care professional declining to provide health care services that violate his or her conscience, except for life-threatening situations…If a health care professional invokes a conscience right in a life-threatening situation where no other health care professional capable of treating the emergency is available, such health care professional shall provide treatment and care until an alternate health care professional capable of treating the emergency is found.”

In a situation the doctor morally opposes the required treatment to save the patient’s life, such as a D&C to stop a pregnant patient’s hemorrhaging, the doctor must act for the good of the patient, irrespective of the doctor’s moral compunctions, if there is no alternative equivalent practitioner. To refuse will mean that full liability for the consequences may still attach.

Although the second element of that statute uses “life-threatening” and “emergency” interchangeably, a physician relying on such a conscience clause should assume this may address circumstances broader than an acute emergency. For example, take the case of a doctor who opposes abortion and refuses to administer chemotherapy to a pregnant patient (who states that she will abort if the drug causes birth defects). If this doctor is the only oncologist available to that patient because no other oncologist accepts her coverage, refusing to treat could constitute abandonment on a life-threatening matter just as walking out of an ER would.

On the other hand, a doctor who may be involved in very critical care who objects to a given treatment on moral grounds may unilaterally step away and retain immunity if that care is not necessary to save the patient’s life. Consider a terminal patient with dyspnea whose family, citing the patient’s wishes in their advanced directive, requests morphine for that but whose doctor regards the possibility of hastening death as equivalent to euthanasia. That doctor can cite the conscience clause and avoid being civilly liable for any suffering the patient experiences because of his refusal.

A conscience clause is solely a personal opt-out that gives a doctor immunity and stops there. It is not a route to derailing care that the doctor disapproves of. In the example above, the doctor who feels that the morphine is not a morally acceptable treatment should permit a willing physician to step in to carry out the patient’s express wishes — even if the objecting doctor sees that as facilitating what he believes is wrong. The doctor is the patient’s agent, not his keeper.

A physician who remains unwillingly constrained in delivering morally objectionable care because there is no alternative may not manipulate the consent process to vitiate the patient’s choice and get the outcome he wants. For example, a doctor who morally opposes abortion may not withhold or misrepresent the results of tests that revealed severe fetal anomalies. A doctor who morally opposes removal of supportive care from a terminal patient may not lie to the family about the suffering that such removal will cause.

Doctors have considerable moral latitude. But it is balanced by fiduciary obligations of care if the care is essential under the abandonment doctrine. They may not interfere with alternative routes to the care the patient seeks or mislead the patient as to that care.

A conscience claim will also be scrutinized as to whether it conflicts with anti-discrimination law.

For an example, let’s look at a case from California: An unmarried lesbian patient wanted to be artificially inseminated. Her physician refused, ostensibly citing her unmarried status. However, the patient was able to show that the actual reason was her sexual orientation. The trial court found for the patient, holding that physicians in a for-profit medical practice group had to comply with state anti-discrimination law. The appellate court, however, overturned that decision, holding that it violated the physician’s religious rights. The state Supreme Court then reversed the appellate court, finding that a doctor has no constitutional right to refuse, on religious grounds, to perform a medical procedure for a patient because of the patient’s sexual orientation. This holding was grounded in the principle that a physician’s right to free exercise of religion does not exempt him, as a business which serves the public, from obeying facially-neutral state laws which prohibit discrimination based on sexual orientation. Different states might come to different conclusions.

A final point about this case is that it centered on state law affirming the rights of gay people as a protected class to be free from discrimination in public accommodations, which includes doctors’ offices. If, however, the doctor could have proven that the ostensible reason – that the patient was unmarried – was the actual reason for the refusal of treatment then the doctor would likely have been free to refuse the treatment based on personal religious scruples– because unmarried woman are not currently a protected class under the anti-discrimination law.

In general, though, refusals to treat based on conscience claims solely citing class-wide distinctions will be suspect.

3. Political differences with the patient

Historically, politics stopped at the doorway of the medical office. That is why a Democratic surgeon was able to assure a wounded Ronald Reagan that, for that day, he too was a Republican.

However, times have changed.

One doctor in Florida taped a sign on his office door saying that Obamacare supporters should “seek urologic care elsewhere.”

From a civil rights perspective he was not barred from doing so. There are some cities, such as Washington, D.C., which have laws against discrimination based on political affiliation but a patient’s politics typically does not make him a member of a protected class.

However, from a medical perspective this was problematic as implemented. While a patient may be terminated from a practice for any reason or for no reason, the physician’s fiduciary obligation is to avoid abandonment. This doctor was therefore obligated to formally discharge all patients he no longer wished to treat based on their political standings, including the obligation to provide a period of emergency coverage while they obtained care elsewhere.

Failure to adhere to this formality can morph into a board complaint for abandonment or a lawsuit for injuries resulting from the denial of care. AMA Ethical Opinion 9.012 holds that “Under no circumstances should physicians allow their differences with patients or their families about political matters to interfere with the delivery of high-quality professional care.”  This is, of course, not legally binding but boards and courts do look to these standards in making decisions.

If you and a patient are at political loggerheads in a way that impairs the therapeutic relationship, first try to agree not to discuss politics. If the ability to treat the patient effectively is still impaired then do a proper discharge from the practice on that basis, not citing politics. Since a patient you have been having political fights with is one likely to seek retribution for being fired from the practice, this is a termination that you want to handle by-the-book.

In summary: A physician may refuse care based on their own fear of infection, their moral objection to the care or their political differences with the patient but that ability to refuse care is limited by fiduciary duties to the patient, the objective metrics of risk and anti-discrimination statutes.