Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral, and Emergency Treatment
Matheny Antommaria, Armand H., Ave Maria Law Review
Jane is a 15-year-old who became a patient of Dr. Jones several years ago. As she entered puberty, she no longer felt comfortable seeing the male pediatrician who had cared for her since birth. Jane and her mother chose Dr. Jones on a friend's recommendation after confirming that Dr. Jones was on their insurance plan. Jane is in good health and sees Dr. Jones periodically for attention deficit hyperactivity disorder for which she is treated with stimulants.
Jane and her boyfriend have been dating for several months. They are sexually active and use condoms for contraception. On Saturday night, during intercourse, their condom broke. On Monday morning at school, Jane shared her anxiety about becoming pregnant with her best friend Lily who told her about the "morning after pill." Jane frantically made an appointment with Dr. Jones for later that same day.
In the office, Jane explains her concerns to Dr. Jones who clarifies that post-coital contraception is effective if used within at least 72 hours. Dr. Jones, however, states that she believes it is morally equivalent to abortion and does not prescribe it. Jane asks where she can obtain a prescription and Dr. Jones replies that she cannot in good conscience refer either. Jane is very upset at what she perceives as Dr. Jones's lack of sympathy and unwillingness to help.
Jane texts Lily and they Google "emergency contraception." Using the Office of Population Research & Association of Reproductive Health Professionals' website http://ec.princeton.edu, (1) they find the address of the local Planned Parenthood clinic. (2) The clinician provides her with a prescription and offers her contraceptive counseling.
Jane's mother agrees that they should transfer to another practice. When calling to schedule a new patient appointment, Jane's mother confirms that all of the providers in the new office prescribe emergency contraception. While waiting the six weeks for the appointment, Jane runs out of her stimulant. Because it is a controlled substance, she does not have any refills and needs a new prescription.
With increasing cultural pluralism and patient autonomy, clinicians have begun to assert the ability to refuse to participate in certain activities they consider immoral, such as the prescription of post-coital contraception, based on claims of conscience. The first part of this article will examine the conceptual foundations of such claims, their scope and limits. Claims of conscience should fundamentally be understood as claims to maintain personal integrity. Contrary to assertions that they are attempts to impose one's moral or religious beliefs on others, they should be understood in terms of the providers' liberty rather than paternalistic or moralistic violations of the patients' liberty. Concern over improperly contributing to another's immoral action, however, remains an important ethical consideration. Analysis of material cooperation relies on relative distinctions, which themselves can become claims of conscience. Having outlined a theory of conscience, the article will then examine the potential limits to the appeal to conscience, particularly in the medical profession. As a liberty claim, claims to conscience can be constrained by harm to others. In health care, such claims can also be limited by providers' fiduciary obligations to patients. There is not, however, a clearly distinct professional ethic that can be used to distinguish professional claims from personal or private claims and medically indicated treatment from treatment that serves broader social goals. The second part of this article will use this conceptual structure to identify providers' responsibilities in various aspects of the patient-provider relationship illustrated by the above hypothetical case. The aspects include the initiation of the patient-provider relationship, disclosure of alternatives in the informed consent process, referral and treatment during the transition process, and emergency care. …