Legal Analysis and Commentary from Justia
Posted In Health Law

When Conscience and Duty Conflict: A Health Care Provider’s Moral Dilemma

Most of the time, physicians and other health care providers have coincident legal and ethical duties to perform their professional job functions. An emergency room physician’s obligation to treat patients admitted to the ER derives both from law and from ethics. A nurse’s duty to prepare a patient for surgery likewise comes from both sources. In some instances, however, a provider’s own personal beliefs may mandate one behavior while law and duty require another.

The most salient and most commonly discussed example in this context is that of abortion, and with regard to that procedure, the law is relatively clear: Providers who are morally opposed to abortions or sterilization may legally refuse to participate in those procedures. Similarly, in states that allow physician-assisted suicide, physicians who have moral objections to the practice are not legally obligated to engage in it simply because a patient requests it. In these cases, the law protects the provider’s right of conscience.

Federal laws prohibit any recipient of federal funding from discriminating against a medical provider who refuses to participate in a health care service that the provider finds morally objectionable. Because of the prevalence of federal funding (including federal reimbursement), this prohibition applies to nearly all hospitals, medical clinics, HMOs, and other health-related organizations. While it is seemingly straightforward, this protected right of conscience can present moral dilemmas in situations where the provider’s conscience mandates action (or inaction) that is inconsistent with the provider’s professional duty to act in the patient’s best interests.

In this column, I discuss when, if ever, a health care provider can ethically refuse to participate in a procedure based on his or her moral objections. I will first describe situations in the provision of health care that can present a conflict between conscience and duty. I then consider possible ways to resolve this moral dilemma when it does arise. And ultimately, I conclude that the ideal solution is for both the institution and the individual to take steps to prevent the conflict from ever arising in the first place.

I focus exclusively on situations where the moral objection is to the procedure itself, rather than to some characteristic of the patient. One can certainly anticipate the latter scenario presenting a similar type of dilemma, but resolving that issue would require a slightly different analytic framework and thus I do not address it in this column.

An Example of a Health Care Situation Presenting a Moral Dilemma: The Jehovah’s Witness Physician

There are innumerable possible situations in which a health care provider could be faced with a moral dilemma based on a conflict between his or her personal convictions and professional obligations. I discuss one such situation here in order to illustrate the conflict: the situation of a Jehovah’s Witness physician with a patient who needs a blood transfusion.

In medicine, it is common knowledge that Jehovah’s Witnesses will not receive blood transfusions, even when such a transfusion is necessary to sustain life. Although this may frustrate providers who may, in some situations, have to stand by and watch patients die from a condition that would have been treatable with a transfusion (such as blood loss from trauma), it is undisputed that the patient’s autonomy ultimately governs the course of action chosen. Indeed, it would be illegal for a provider to transfuse a patient who does not consent to the procedure.

Moreover, not only can Jehovah’s Witnesses not receive blood transfusions pursuant to their religious beliefs; they also cannot administer them. Take, then, the case of a Jehovah’s Witness physician. If the physician is treating a non-Witness patient who needs a blood transfusion, the physician’s religious convictions would preclude him from transfusing the patient. Ideally, if this situation were to arise, there would be another physician available to transfuse the patient. However, that is not always possible, particularly in some rural or smaller facilities.

In an emergent situation, such as one where a trauma patient is suffering substantial blood loss, the patient could die or face a high risk of death or permanent injury if he or she were transferred to another facility for the transfusion. Here, the Jehovah’s Witness physician’s duty as the provider of care conflicts with his or her personal conviction, and neither the law nor any ethical rule provides a satisfactory resolution.

The essential conflict is between conscience and duty. If the physician here were to refuse to perform the life-saving transfusion, he or she would almost certainly face a malpractice lawsuit, criminal charges, and a revoked medical license, notwithstanding his or her religious faith.

An Analogous Conflict Between Conscience and Duty: The Conscientious Objector

Although the example of the Jehovah’s Witness physician I described uses an established religion with a widely known prohibition on a specific procedure, the issue becomes even murkier when a health care provider’s conscience comes from a less clearly defined source.

To assess whether a conviction may discharge a duty, I will turn to a similar conflict between conscience and duty that the U.S. Supreme Court has considered on several occasions: the conscientious objector to conscripted military service.

In the United States, every man between 18 and 25 must be registered with the Selective Service. A man who is opposed to serving in the armed forces or to bearing arms on the basis of moral or religious convictions may seek classification as a conscientious objector. However, defining exactly what constitutes a qualifying set of religious or moral convictions for this purpose has proved challenging.

In 1970, the U.S. Supreme Court held that a man may be classified as a conscientious objector unless his “objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon consideration of policy, pragmatism, or expediency.” Consistent with the government’s treatment of religious freedom under the First Amendment, the Selective Service System does not challenge the strength or conviction of conscientious objector’s belief system or morals. However it may require a statement on how the objector arrived at his beliefs and the influence his beliefs on his life.

This test helps guide the legal consideration of whether a belief or conviction may excuse behavior that, without that belief or conviction, would be inappropriate or illegal. However, the analogy falls short of providing a standard by which to resolve the duty-conscience conflict in an emergent life-or-death situation.

The Best Solution: Not to Get Into the Situation in the First Place

Rather than try to decide which duty should predominate, the best solution is to effect institutional and individual change such that these types of conflicts do not occur. It is incumbent on a hospital to ensure that any of its providers who have restrictions on the scope of their practices (such that they cannot perform functions that ordinarily would be expected of them) will be reasonably accommodated.

In the example I used, the Jehovah’s Witness physician should never be the only attending physician in the hospital. Hospitals cannot (and should not) discriminate against providers on the basis of their moral or religious convictions, but neither should they allow situations to arise where a provider must choose between his duty to a patient and his or her own moral compass.

Likewise, individuals must make arrangements when they know their own limitations. In the case of the patient who emergently needed a blood transfusion, the physician should have known of the risk that a patient would need a transfusion and preemptively made arrangements to ensure that the patient would receive care should that situation arise.

When the life of a patient is at hand, a provider’s moral convictions, no matter their source or strength, should never keep the patient from receiving life-sustaining treatment. At that point, the time for avoiding conflict has expired, and the provider’s convictions are subordinate to his duty. Failure to fulfill the duty at this time will rightfully lead to discipline, as well as civil and criminal liability.

David S. KempDavid S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
Print this page
  • http://www.facebook.com/haszard Danny Haszard

    Jehovah’s Witnesses doctrine allows a liver transplant but not the blood that is in it.

    Jehovahs Witnesses DO take blood products now in 2013.
    They take all fractions of blood.This includes hemoglobin, albumin, clotting factors, cryosupernatant and cryo-poor too, and many, many, others.
    If one adds up all the blood fractions the JWs takes, it equals a whole unit of blood. Any, many of these fractions are made from thousands upon thousands of units of donated blood.

    Jehovah’s Witnesses now accept every fraction of blood except the membrane of the red blood cell. JWs now accept blood transfusions.
    The fact that the JW blood issue is so unclear is downright dangerous in the emergency room.
    More than 50,000 Jehovah’s Witnesses dead from Watchtowers deadly arbitrary blood ban,some estimates run as high as 100,000 dead

    Danny Haszard

  • Pingback: Apples with Oranges « ducati998

  • http://twitter.com/ajk_gtowntx Andrew J Karaffa

    I agree with most of the article. The last paragraph or so is sketch. As a healthcare provider, I can tell you it almost virtually impossible to plan for situations where this won’t be called into question. In rural outlying facilities, they are lucky to have any physician in house…often times, in my personal experiences, they have a doctor who took a few emergency prep courses solely for the purpose of being able to emergently treat patients. Being a doctor, and being an emergency or critical doctor are vastly different. 1 facility in my area has a podiatrist (foot doctor) who took an ER course. It’s not the best solution…but any care is better than none at all.
    Just my thoughts.

  • Rob M.

    If you want to learn more about the Watchtower Society visit http://www.jwfacts.com,www.watchtowerdocuments.com, http://www.jwsurvey.org, and http://www.jehovahs-witness.net, or visit http://www.freedomofmind.com to learn how BITE control techniques are used to victimize Jehovah’s Witnesses (JWs).

 

Access this column at http://j.st/ZZWM