COMMENTARY

Whose Rights Come First: Doctors' or Patients'?

Arthur L. Caplan, PhD

Disclosures

November 05, 2019

This transcript has been edited for clarity.

Hi. I'm Art Caplan. I'm at the Division of Medical Ethics at the NYU School of Medicine. Conscientious objection—everybody seems to be talking about it these days. What are the rights of physicians, pharmacists, nurses, or other healthcare workers to say that something may be legal but they refuse to do it?

This issue has come up particularly as more and more health systems are merging. You see Catholic hospitals merging with secular hospitals. Catholic hospitals have a huge presence in the American world of hospitals and nursing homes, probably accounting for 40% of all facilities. When mergers take place, whose values predominate?

It isn't only there. It could be a Mormon-based hospital in Utah. It could be someone who is affiliated with another group, such as Seventh-day Adventists. There are many strong religious values in our society and not everybody subscribes to [the same ideas of] right and wrong.

We are seeing many individuals saying, "I oppose abortion, I'm not going to participate in that, and I'm not going to refer anyone. If they want an abortion, even if it's a legal abortion, I oppose the use of the day-after pill. I'm not prescribing it or filling the prescription for it. I think it's an abortifacient." It isn't, but people still have their personal belief about that.

There are plenty of people who are out there saying they don't believe in X, Y, or Z, and even though it's legal they are not going to do it.

Recently there was an interesting case that went in a novel and counterintuitive direction. A physician at a hospital in Colorado, which is a state that legalized physician-assisted dying, didn't want to do physician-assisted dying at the institution where she was—a Catholic hospital, which had merged with another one, I believe. Instead, she wanted to do it in a different facility.

The hospital where she worked fired her, saying it was inconsistent with their values—even though physician-assisted dying is legal in Colorado. They didn't agree with that and ruled that you can't exercise your conscience to say that you want to do something.

This turned the tables. Instead of saying, "I'm not doing something," she said, "I do want to do something, and as a conscientious objector, you have to let me do this as long as it is off-site and not occurring on the premises."

This is becoming an interesting moral swamp. We want to respect the rights of conscience when physicians say that something violates their personal beliefs and they really can't make themselves do it. I find myself often thinking that if you really don't want to deal with a transgender patient or if a homosexual patient makes you nervous, you're probably not going to be the best doctor for that person. Maybe someone else would be better if you have some value basis about why you don't want to do it.

On the other hand, I think conscientious objection is getting out of control. You can't have physicians, pharmacists, nurses, and social workers saying they are not going to do legally allowed medicine or standard-of-care treatment because it violates their rights.

Patients come first. That's what all the codes and ethics in the medical profession say. They don't say that your rights come first as a physician. They say patients should come first—patients' well-being and patients' best interests.

So, how are we going to start to reach an accommodation here? Contracts that say you can't do things in other places because you work here for us ought not be allowed. I think organized medicine should fight those. The legal profession should sue and say that restricting somebody's ability to go somewhere else and do legal activities as a doctor should not be permitted.

I also think we ought to say, yes, you can opt out if you can find someone else to substitute in and it doesn't disrupt the ER or the organization of healthcare delivery.

Individuals may say they would prefer a male urologist or a female gynecologist. I'm not sure that's the highest standard, but if they're exercising preference and you want to honor that, you don't have to get into a conscientious objection, saying that you still have the right to treat them. Maybe we can accommodate that.

I do think there's an obligation to tell people what's out there, what their rights are, and what's available—even if you're not going to do it. That means that although you may not want to perform physician-assisted dying, people have a right to know that it is legal in some states, these are the doctors who do it, and this is the website that will tell you about it.

I even would stretch that so far as to go to abortion and reproductive services, such as in vitro fertilization, which some people oppose. Patients have a right to know where to look for information about legitimate medical practices, and I think that trumps conscientious objection.

It's one thing to say, "I'm not doing that," "I can't do that," or "It violates my values." It's a very different thing to say, "Someone else would and it's entirely legal to do it, but I'm not going to tell you about it." That's not consistent with informed consent and that's not consistent with putting patients' well-being and interests first.

I'm Art Caplan at the Division of Medical Ethics at the NYU School of Medicine. Thanks for watching.

Arthur L. Caplan, PhD, is director of the Division of Medical Ethics at New York University Langone Medical Center and School of Medicine. He is the author or editor of 35 books and 750 peer-reviewed articles, as well as a frequent commentator in the media on bioethical issues.

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