The Fragile Web of Responsibility: AIDS and the Duty to Treat

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The Fragile Web of Responsibility: AIDS and the Duty to Treat

Do physicians, by virtue of their role as health care professionals, have a duty to treat HIV-infected patients? Must they subject themselves to the very small, but nonetheless terrifying, risk of becoming infected themselves in order to live up to the ethical demands of their calling? For most physicians toiling in the front lines against AIDS, this is a new and totally unanticipated moral question that has yet to receive a clear and satisfying answer.

The current generation of physicians has experienced very little exposure to serious occupational risk. Well protected by antiseptic techniques and antibiotics for a period of roughly thirty years, doctors in developed countries have come to believe (with some justification) that they are exempt from the riskier aspects of medicine that had claimed the lives of so many of their predecessors. Prior to this pax antibiotica, risk and fear accompanied physicians daily, especially during the all-too-frequent periods of plague and virulent infectious disease. For many, if not most, of these physicians, to be a doctor meant that one was willing to take personal risks for the benefit of patients. One entered the profession with a keen appreciation of the hazards. By abruptly dispelling this perception of relative safety, AIDS has compelled today's physicians to reopen the traditional inquiry into the moral relationship between hazard and professional duty.

AIDS has likewise highlighted the limits of most contemporary bioethical inquiries into the physician-patient relationship. In their singleminded campaign against the excesses of medical paternalism, most bioethicists have been content merely to refute physicians' claims to moral expertise and special prerogatives based upon their Hippocratic duty to benefit the patient. In undermining this claim, bioethicists have completely ignored the question of whether physicians might still have special responsibilities as healers.

Moreover, the bioethicists' favorite metaphor for describing the physician-patient relationship, the contract between free and equal moral agents, has further obscured the issue of physicians' obligations to place themselves at risk in the service of their patients. By stressing the voluntary nature of the physician-patient "contract," bioethicists have inadvertently reinforced the notion that physicians, as free moral agents, have a perfect right to choose whomever they wish to serve. This claim to contractual freedom, enshrined in the 1957 AMA Code of Ethics, [1] likewise fails to address the question of whether physicians have a special duty to enter into contracts with hazardous patients.

Although there are many ways in which physicians can fail to discharge their putative duty to care for HIV-infected patients, ranging from outright refusal to foot-dragging, I shall focus on the central problem of categorical refusal to treat due to fear of infection. Do all physicians have an ethical duty to treat HIV-infected patients in spite of the risk, or can physicians fully discharge their moral duty to such persons by referring them to other physicians who are willing and capable of treating them? In short, is voluntarism an ethically acceptable basis for medical practice in the age of AIDS?

Protecting the Vulnerable: Individual Rights and

Professional Obligations

One promising starting point for our inquiry is to focus on the medical need of HIV-infected patients. These persons harbor a potentially lethal virus and may already be manifesting symptoms of ARC (AIDS Related Complex) or AIDS. They may require treatment of AIDS related conditions--such as Kaposi's sarcoma and pneumocystis pneumonia--or they may incidentally have other health problems requiring attention, such as kidney failure, heart defects, or dental problems. Although the diagnosis of HIV disease renders their plight particularly poignant, these patients resemble all patients with serious illnesses insofar as they are sick, vulnerable, and needy.

One compelling, though still contested, response to such health needs is to claim that they establish either an individual right to health care or at least a social duty to provide it. [2] This approach holds that because of the pivotal importance of health needs, including those needs created by AIDS, each person either infected with the virus or manifesting symptoms has a claim, grounded in justice, to the provision of needed health care.

The obvious drawback of this approach for our purposes is that it entirely avoids the question of physicians' individual or collective responsibility for HIV-infected patients. Whether we accept the language of individual rights or the language of societal obligation, the duty to provide care could be interpreted to fall squarely upon society through the vehicle of government, not on physicians as individuals or as a professional group. A voluntaristic system, with special incentives for those willing to treat, is compatible with this kind of societal duty.

A closely related argument makes use of the notion of a social contract between society and the medical profession. In exchange for the performance of a vital public service--that is, ministering to the needs of the sick and vulnerable--physicians as a group are granted monopolistic privileges over the practice of medicine. By seeking and receiving such a benefit, physicians incur a corresponding obligation founded on the notion of reciprocity. [3] If physicians are granted a monopoly over medical practice and then refuse to treat certain patients who are perhaps the most vulnerable members of society, who else will treat them? Just as the police have a duty to protect defenseless citizens based on their monopoly over the legitimate use of force, so physicians have a duty to treat those in medical need, even in the face of some personal risk.

By establishing some sort of duty to treat, the social contract approach thus improves upon the right-to-health-care argument, but we must concede immediately that it locates the duty not on the shoulders of each and every physician, but rather at the level of the medical profession. Since the parties to this contract are society and the profession, the social contract cannot generate, at least in the first instance, the kind of responsibility that goes through the profession to each individual member. So long as society's vital interest in caring for the vulnerable is secured, the social contract is upheld, no matter what the response of individual physicians.

This is where the analogy between physicians and the police breaks down. Whereas both groups have a professional monopoly on providing a vital public service, as well as the corresponding professional duty to provide it, individual police officers are also expected to take risks in the course of their ordinary duties. Whether they like it or not, they have to go down that dark alley where danger lurks. The reason for this disparity in the terms of these two social contracts is that police officers cannot usually delegate their risky business to others. Except for medical emergencies and personnel at public hospitals--the two obvious exceptions to the social contract's inattention to individual performance--physicians can usually refer undesirable or especially hazardous cases to others.

The sort of duty to treat generated by the social contract strategy is thus clearly compatible, at least in theory, with a voluntaristic system. Indeed, some might argue that such a voluntaristic system provides an optimal solution to the problem of AIDS: the patients get respectful care from physicians who really wish to provide it; unwilling doctors are freed from professional or legal coercion; and willing physicians are rewarded either by their own virtue or by incentives. In theory, everyone's needs and interests are thus secured by the social contract under conditions of maximal freedom of choice.

In practice, however, there is reason to believe that such a voluntaristic system might prove to be either unstable or inadequate. In the first place, such systems …