Duty First: Towards Patient-Centered Care and Limitations on the Right to Refuse for Moral, Religious or Ethical Reasons
Morrison, Jill, Allekotte, Micole, Ave Maria Law Review
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
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. …