Academic journal article The Hastings Center Report

Conscience Rules: Implications for Care

Academic journal article The Hastings Center Report

Conscience Rules: Implications for Care

Article excerpt

On February 18, the Department of Health and Human Services issued a rule, "Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws," that limits health care providers' power to shape their practice by personal conviction. The rule narrows possible conscientious objection significantly, protecting patients' rights and in the process eliminating public reinforcement of the harmful idea that religion and medicine are always destined to diverge.

The DHHS regulation nullified a Bush administration policy that had expanded the definitions of who was covered by and what actions qualify for federal conscience protection. In addition to addressing familiar controversies at the beginning of life, the Bush rule also raised a concern about patient self-determination at the end of life. Critics feared that a broad right to conscience would interfere not just with providing care but with discussing priorities and rights with the terminally ill.

This refusal even to speak about death, to address our obligation to care for the dying in spite of our own denial and grief, echoes the outcry against reimbursement for voluntary advance care planning originally provided for by the Patient Protection and Affordable Care Act--the notorious "death panels." An attempt was made to issue this benefit through a Medicare rule issued in late 2010, but officials rescinded the rule within days of its issue due to political pressures. This left official silence where there might have been financial support and affirmation for these conversations. By limiting conscience protection, the new DHHS rule removes a possible obstacle to these conversations, but it does not provide substantive support for them.

Part of what animates the regulatory tug of war over conscience protection is a belief some have that conversation is somehow dangerous, and as fraught with psychological and social power as silence was a few decades ago. But the idea of dangerous talk is false: over and over on ethics consultations, I have seen how silence allows tensions to amplify. The lack of clearly articulated wishes on the part of the dying and the difficulty everyone has in conducting fair, honest conversations about a seriously ill patient's fate make hard situations harder. …

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