COMMENTARY

Should Doctors' Rights Come Before Patients' Rights?

Arthur L. Caplan, PhD; Cheyn D. Onarecker, MD, MA; Sandeep Jauhar, MD

Disclosures

January 15, 2020

This transcript has been edited for clarity.

Arthur L. Caplan, PhD: Hi. I'm Art Caplan from the Division of Medical Ethics at the New York University Grossman School of Medicine. I want to welcome you to Medscape's Both Sides Now, where we discuss topical and controversial issues of the day in medicine.

Suppose a patient asks you to perform a procedure or prescribe an FDA-approved drug but you have strong moral objections to doing so. Should you, as a physician, given your oaths to help patients and so on, override your own feelings and values to assist the patient, or should you have the option to not provide that treatment? Should you have the option to not provide the treatment if you suggest that the patient go elsewhere, and you tell them exactly where to go, even if you believe, in your personal value system, that what they are seeking to do is unethical?

Recently, a Colorado doctor was fired after suing her employer for the right to assist a patient in ending her life. Colorado has legalized physician-assisted dying. But her former employer, a health system affiliated with the Catholic and Seventh Day Adventist churches, said helping a patient engage in that behavior violated its faith-based policy.

In November, a federal judge blocked a conscience rule proposed by the Trump Administration that would have allowed healthcare workers to opt out of providing procedures that they objected to. Even without that decision, there still is an obvious issue about whether opting out is something an individual physician, driven by conscience, might do.

How do physicians balance their own beliefs, values, and ethics with their oath, commitment, and obligation to help patients, and their professional codes of ethics, which instruct them time and again to put patient interests first? "Patients come first" is very common, from American Medical Association codes to American College of Physician codes, to you name it—almost every healthcare organization says patient interests come first. These are tough, thorny issues. We have no clear-cut answers to many of these dilemmas.

I'm joined today by two physicians with distinct points of view on the subject. I believe that they will help shed some light on your thinking about how to approach the issue of conscientious objections.

Sandeep Jauhar is a practicing cardiologist on Long Island, New York, and a contributing opinion writer for The New York Times. Earlier this year, Sandeep wrote an op-ed called "Can Doctors Refuse to Treat a Patient?" where he argued that patients' needs should come first, and that doctors have an obligation to adhere to the norms of their profession, even if they have personal value-based objections.

My other guest is Cheyn Onarecker, who joins us from Oklahoma City, Oklahoma. Cheyn is a family medicine physician, currently serving as the program director of the Saint Anthony family medicine residency. He's also the chair of the healthcare ethics council for the Center for Bioethics & Human Dignity, a well-known medical ethics organization. He believes that when it comes to requests for treatment that violate a physician's deepest moral convictions, no doctor ought to be forced to act against those values.

Gentlemen, thanks to you both for joining me today. I am pretty sure that we could take up about 8 hours of discussion on this topic, but let's see where we can get in the next 30 minutes or so.

How does each of you understand conscientious objection? What comes to mind? Do you have a paradigm or illustration? What exactly are we talking about when we say you should or should not have to follow your deepest values?

Cheyn D. Onarecker, MD, MA: I guess it helps to first understand what "conscience" means. From my perspective, it's the capacity to reflect on the moral qualities of a decision and, more than just reflect, there's something about conscience that carries with it some obligation to act in accordance with that reflection. To have a healthy conscience would be to feel satisfied or in some way pleased with acting in a way that corresponds with that moral reflection, or to feel regret, remorse, or guilt if you acted in a way that was contradictory to your conscience.

With that in mind, I would see conscientious objection as a decision by a physician to refuse to participate in a particular procedure or treatment, based on the moral reflection that has occurred in that physician's conscience.

Caplan: Sandeep, how do you frame conscientious objection?

Sandeep Jauhar, MD: Conscientious objection has most commonly been used in reference to the military—when a draftee, for example, refuses to participate in warfare or violence because of deeply held convictions and objects to military service. I believe that's typically how most people think of conscientious objection. I agree with Cheyn that the concept can be applied in medicine when physicians object, and most often, the discussion revolves around abortion and physician-assisted suicide. Those seem to be the two issues physicians most frequently have strong beliefs about, because the underpinning of our profession is to do no harm, to improve life and prolong life. So I can certainly understand when physicians object to practices such as abortion or assisted suicide.

The question really is, how does that objection impact patients and their own rights to self-determination? That's where the issue gets particularly thorny.

Caplan: That's a great point to highlight the tension. I'll come back to you, Cheyn, and ask the obvious question. We have values and moral and religious beliefs that our patients adhere to, and we have ethical views with which physicians, nurses, and many others appropriately, and I think admirably, guide their lives and teach their children, and so on. But, whose values take precedence when there is a collision?

Onarecker: A simple way to think about it is to try to answer the question, whose rights come first? Whose rights trump? When patients come to see their physicians, typically they're ill or they have some concerns about their health. It's the duty of the physician to try to help the patient back to health or to relieve suffering or answer questions about which patients have concerns. The patient doesn't know how well the physician did in medical school or whether they barely passed their boards. The patient is putting their trust in the character of the physician, in that physician's role as a professional, trusting that the physician is going to use her skills, knowledge, and talents to assist and promote the interests of the patient.

You would think that the patient's rights come first. Certainly, in an emergency situation, I don't think anyone would say that's not the case, that a patient's rights come first. But physicians also have situations where their own rights come first; there are all sorts of justifications and allowances that we give physicians. For example, I think of physicians who don't work weekends. Most doctors I know set their own office hours, even though they're not particularly convenient for a lot of the patients who work. Some physicians refuse to see Medicaid or Medicare patients. They take vacations. They take time off to eat and sleep.

My point is that we have all sorts of reasons we use to justify physicians' decisions to refuse to care for certain patients in certain situations. How much more should we be willing to accommodate a physician's decision to refuse to care for a patient when we're talking about a procedure that conflicts with the physician's deeply held convictions? I believe we should be even more willing to accommodate those kinds of situations.

Caplan: Let me ask a follow-up to that. When I go to my family physician or internist or, as I recently had to do, see an orthopedist for treatment of my knee, should they have a discussion with me and say, "Look, before we start, here's what I want you to know. I'm a fan of professional football. I know many people don't like it. They think it's too dangerous. I am pro-vaccine. I don't know what your view is, but that's where I stand," and so on. You see where I'm going here. In your view, should that be part of the initial exchange, assuming a non-emergency kind of problem?

It makes great sense that physicians would let patients know in advance how they handle certain situations and what their practice consists of.

Onarecker: It certainly makes sense to me that physicians should inform patients in advance, possibly through brochures, leaflets, or pamphlets. I think hospitals, employers, and insurance companies should learn that information from the physicians who are in those practices, so that patients have the information to know whether that physician may not be the physician they want to see, because of their particular view on this.

It may not even be a controversial issue. Boy, I've had many of my patients go to see an orthopedic surgeon for a shoulder problem and be very frustrated to find out that that doctor doesn't work on shoulders. That would have been a nice thing to know before the consultation was set up. So, not only with controversial situations, but in general, I think it makes great sense that physicians would let patients know in advance how they handle certain situations and what their practice consists of.

Caplan: Sandeep, how do you see this prioritization or ordering of values between doctor and patient? Cheyn argues that there ought to be some room for accommodation. It's not an emergency. We have some time. We yield to physician decisions about whether they're going to take Medicaid patients and other things. As you look at the doctor-patient relationship, should some leeway be given in regard to the doctor's values and deeply held moral commitments?

Jauhar: Cheyn also said that when a patient goes to a physician, the patient is going to an individual with unique moral views. I would argue that that's subsidiary. When a patient goes to a physician, they're really going to a profession, and that profession has certain obligations and norms. So, a patient visiting a physician has certain expectations that the procedures or treatments that the profession sanctions will be available.

Now, I think most people would agree that if a patient is requesting a procedure or some sort of treatment that is outside of professional norms, treatment that is futile in intensive care, for example, or treatment that will be harmful in the physician's judgment, then it's certainly reasonable to refuse to provide that sort of treatment. But this is not what we're talking about. We're talking about patients requesting treatments that are sanctioned by the professional body, as it were.

Caplan: The standard of care.

Jauhar: The standard of care. When a physician imposes his or her own moral views and refuses to provide that sort of treatment to a patient, I think it's necessarily limiting the patient's rights.

Caplan: Let's say I'm seeking out emergency contraception. I have to do something within 48 hours, so I have a bit of time. What if the physician said, "Well, I don't do that. I'm not comfortable with that, but we do have time to find someone who will help you." Would that be a more acceptable way of managing physician values when they conflict with patients'?

When a patient goes to a physician, they're really going to a profession, and that profession has certain obligations and norms.

Jauhar: That's certainly, at the very least, what a physician should do. But you have to keep in mind that certain areas of this country are quite resource-poor when it comes to medical service. Physicians may de facto have a monopoly on medical service, so refusing to provide that service in a timely manner or directing the patient to go elsewhere can lead to potentially dangerous delays.

Caplan: Cheyn, I'm going to move in this direction with you as well. We allow some discretion if the physician is willing to say, "I have an alternative provider for you right here who will do this, or if you take a 10-minute drive down the road, you could find someone who I believe would work with you." Is that something you're comfortable with, as a matter of trying to respect physician conscience?

Onarecker: I think it depends on the specific situation as to how far the physician would be willing to go to help the patient find a particular treatment. Physicians differ. Some would be willing to give the names of other physicians. Some would be willing to call other offices to try to get an appointment. Others, depending upon the particular procedure or treatment we're talking about, would feel that they were being complicit with the actual procedure if they went as far as to help someone set up an appointment or made phone calls or that kind of thing.

That's where I go back to my point about insurance companies, hospitals, and employers. If they were to put together accurate lists of physicians who provide certain procedures, so that patients could easily find those, then that would help to provide some accommodation to physicians who feel that—let's say it's an abortion, since that tends to be the biggest conversation—by setting up that appointment, I'm participating in some way. But if I had a list of reputable providers that I could give to patients, that would be something I could go along with. I can't say that every doctor would.

But that goes back to something Sandeep mentioned earlier, which was that some of these treatments may fall outside of the standard of care, such as providing futile care or something that's outside my scope of practice. I don't think anyone is suggesting that we even need conscientious exemptions or conscience-based exemptions for those treatments. It really does come back to the more controversial procedures that we've already mentioned, to look at practices that need that kind of an exemption.

Jauhar: I agree with that, but I believe it is the least we can expect or demand a physician, a conscientious objector, to do—to direct the patient elsewhere so that the patient's own rights are also respected.

Caplan: By the way, I'm going to jump in just to say that of those professional norms, the one that bioethics is especially proud of is informed consent. Knowing the options is a key part of informed consent. That's a place where, perhaps, you might argue that there's a very strong obligation to make sure people know their options.

Jauhar: And we should remember that in society, conscientious objection comes with some costs. When you're a draftee and you object to military service, it's not that you're let off the hook and you can go and do whatever you want. You have to participate and provide some other service or go to jail. Conscientious objection needs to be respected, but at the same time, I don't think it's free. I think there are certain responsibilities that the conscientious objector has to live up to.

Caplan: Suppose I'm thinking about going to medical school. I have strongly held pro-life positions. I don't think I could ever participate in abortion. I don't think I would ever willingly try to help someone shorten their life. I find those acts objectionable. Should I go to medical school?

Jauhar: Yes. I'm a cardiologist. I don't perform abortions. There are certain medical specialties that are largely exempt from these sorts of thorny issues, but obstetrics/gynecology (OB/GYN) is not one of them.

Caplan: Should I consider palliative care?

Jauhar: If you have very strongly held beliefs that are against the norms of certain specialties, then I don't believe it's unreasonable to avoid those specialties. Going to medical school, becoming a doctor, is a choice. It's not like a draftee, who has no choice. You're making a choice. So you should make a choice with maximal information. If you can foresee almost immediate problems, moral problems, with practicing in a certain specialty, I would say avoid it.

Onarecker: I'm a residency program director, so I get the opportunity every day to work with these enthusiastic, idealistic young physicians who are out to change the world, or at least the small part of it they get to work in. Many of the residents I work with have strong convictions about what they see as the way healthcare is going these days in this country, with access to care, disparities in care, and injustices socially and economically. They have very strong convictions about that. Many of them do want to work with the underserved, and there are many rural communities here in Oklahoma that are in desperate need of physicians, particularly primary care docs who are willing to do obstetrics, for example. It doesn't seem to me to be reasonable to tell these communities and these young physicians, "You picked the wrong specialty. I know you wanted to work with those folks, but because you don't perform X or Y"—which is probably an incredibly small part of that practice anyway—"then you need to go and do something different for your career."

I think the statistic I saw from the Guttmacher Institute was something like 7% of obstetricians perform abortions in this country. So, how many medical students actually ever work with a physician who performs abortions? It would seem that most young students who go into OB/GYN are really not under the impression that it's "do abortions or don't bother going into OB/GYN." It just seems like that's an unreasonable expectation for that young, idealistic student or resident.

Caplan: Let's shift a bit. This is an impression; I'm not asking for hard numbers. I'm just curious. Do you think the whole notion of conscientious objection is more prevalent among somewhat younger doctors than it was among the previous generation or among older physicians? In the past, did physicians have more of a belief that they had to conform to the standards of care and the norms? Younger people, perhaps, are more autonomy driven, more attentive to choice than an earlier generation. Or is that just not true? I'm curious about your impressions or perceptions.

Onarecker: Not being a sociologist, it would be hard for me to know how all of these factors play, and there does seem to be a convergence of multiple factors. Maybe younger physicians' expectations about their careers are different from when I came into medicine. Work-life balance emphasis is much more prevalent now, along with flexible work hours, accommodations for family time, and maternity/paternity care. There are more women in medicine now than when I started. I think that brings several issues to bear.

But I believe that part of it is that society seems to have become more polarized. I'm getting to be kind of an older guy, I guess; my kids tell me I'm one of the older guys. In my experience, things are a bit more polarized politically, and it makes it more difficult to hold these kinds of conversations, which I think are incredibly valuable. We're talking about abortion and assisted aid in dying, and those have been the big issues. But, boy, on the horizon are a lot of new issues: genetic testing and genetic manipulation, body enhancement, cognitive enhancement—a lot of these things that even primary care docs are going to have some involvement with. I think some of those issues are pushing this discussion as well.

Jauhar: That's an interesting thesis. I personally don't see this phenomenon as being a function of the younger generation and their emphasis on choice or lifestyle. I view this more as a consequence of the culture wars that started in the 1980s and '90s between faith-based, family-oriented groups against more progressive groups on the left. And I believe that conflict led to the federal legislation that protected conscience. I think the reason it's coming up now is not because of young people. It's because of Trump. And it's because of the use of cultural conquests as a political tool.

Caplan: The politics of all that?

Jauhar: Yes, the politics of it. That's what I see.

How do you respond when someone uses conscientious objection almost as an excuse?

Caplan: Cheyn, this has come up in my own experience at NYU with med students. Some of them say some interesting things about conscience. Some would say, "My conscience says I can't prescribe name-brand drugs. I've got to prescribe generics. It violates my ethics to do otherwise." I've heard them say things such as, "I don't want to come in contact with anything that has to do with animal research." That would probably make it impossible to go to medical school, but they mean in the immediate arena, not 18th century physiology experiments. You can get a lot of conscientious objection looking into the future.

I have students who've said, "I have an objection to testing. I think it's discriminatory. I think it's biased." Is there any limit? How do you respond when someone uses conscientious objection almost as an excuse, or when you're not sure it is legitimate?

Onarecker: In other words, what are the limits? How far does this thing go? I think there are some things that most of us would agree on, regardless of how you stand on the issue of conscientious exemptions or objections, and that would be something like racial discrimination. In other words, there may be certain practices, certain types of procedures you might object to, but I don't think anyone will feel too comfortable about covering someone who doesn't want to take care of certain types of patients. With something like racial discrimination, if you're asking for protection because your conscience won't allow you to take care of certain patients from a specific ethnic background, I don't believe that anyone is going to be in your camp there. Most of the situations I see that are being talked about in the literature, and certainly even in the popular press, are the more controversial ones, where there are significant numbers of individuals who really do wonder whether something is proper treatment. Is this really promoting the best interests of my patient?

We mentioned abortion or aid in dying, but there may be others. Does it promote my patient's best interests to remove a healthy body part because the patient is struggling with certain identity issues? Would it really be in their best interests to provide certain treatments just because it's their preference, as opposed to something that would make a difference for them? I look at that and think, well, there are some limits to conscience, and I think most of us would say that all of the discussions center primarily around those more controversial procedures, rather than on things like, "I just can't accept women in medical school" or "I just don't want to prescribe these drugs because I know a guy who worked for that company once."

Jauhar: I don't see that.

Caplan: Sandeep, do you think it is easy to draw the lines? Somebody's going to say, "Well, I'm not scrubbing in with that Elizabeth Warren supporter."

Jauhar: No. I don't see that as a problem of conscience. Conscientious objection has certain standards. For example, if you're drafted into the military, you can't just show up and say, "I have conscientious objection against military service." There has to be a narrative that supports your objection. Otherwise, it's self-serving.

Caplan: So you need to come up with reasons that sound persuasive.

Jauhar: There have to be standards for conscientious objection.

Caplan: I want to stress this point. If I'm mentoring or I'm the attending, and I pick up a conscientious objection, I should feel within my absolute professional right to ask why. What are the reasons? Explain them.

Jauhar: Yes. Otherwise, you can object, as you pointed out, to almost anything. You could object to prescribing certain drugs, or to scrubbing in with certain individuals, or to treating certain patients. That would lead to chaos. So we have to protect the profession and patients, who also have rights and reasonable expectations.

Caplan: We know that there are vulnerable patients out there—homosexual patients or transgender patients and others, who may feel the wrath of those who object to a lifestyle or a choice. Yet, we want to make sure they get their healthcare. Is there a danger of a slippery slope?

Jauhar: Absolutely. There are some instances where conscientious objection could be used as a pretext for bias or prejudice. Certainly, Christian medical organizations have said that treating transgender patients is cooperating with evil. Conscientious objection is one thing, but using it to discriminate is a very slippery slope.

Caplan: Cheyn, are you willing to push hard when you get that objection, to ask why and what is the basis?

Onarecker: I can think of a recent example. In our residency we do a lot of circumcisions in family medicine, at least in our program. A lot of patients ask for those. But we have residents from time to time who come in to my office and are quite nervous and intimidated to come in, and they sit down, and I'm thinking to myself that this must be something really big. And they say, "Dr Onarecker, I just want to let you know that I have strong convictions about not doing circumcisions." Circumcision is a controversial procedure for some, even though it's an acceptable part of practice.

It's proper treatment in the right situation. The American Academy of Pediatrics actually suggests that there are more benefits to circumcising than not circumcising. It's still controversial for some, and there are still those who have very strong feelings about it. So it was easy for me to let this resident off the hook emotionally, so to speak, and let her calm down, and to explain that I understand. Certainly, that's not going to place an undue burden on patients; we have others here who can do those procedures. I certainly don't want to force her to do something she feels strongly against.

On the other hand, I've had others who have expressed objections to certain things, and part of it is just understanding a bit more about the nature of a procedure and the nature of medical care—as Sandeep said, about professionalism and what it means to be a physician. You'll find some residents who change their minds. They say, "That's a great point. I felt so strongly before, but it's part of my obligation as a physician to get up in the middle of the night and come in to do all of the work that puts those patients' interests first." Sometimes we can help develop their conscience a little by explaining things in more detail. I believe that it works both ways. I've had residents want some exemptions, and I've had others who have actually changed their minds after conversations.

Jauhar: Granting exemptions when you have a slew of other residents who will perform the procedure is very different from granting exemptions in rural areas where a patient may legitimately suffer and have harm done to them.

Caplan: As I move toward wrapping up this really interesting discussion, it seems that there are a couple of points of consensus, and I'm going to let each of you respond to my efforts to drive a few of them out. One is that conscientious objection requires giving reasons. It isn't just simply saying, "I don't like it. I don't want to. I'm not going to." There may be consequences to saying, "You have to learn more about it. You have to study more about it. Maybe you're not suited to working in a particular institution that has or doesn't have limits on its rules."

You should try to be up front with patients if you have deeply held values so that you can at least give them, when possible, a choice. When it's an emergency, conscience counts less. You can't go there as strongly. And perhaps there is a duty, at minimum, to supply people with information about legitimate, legal, available options. We could even argue about how far to go there. But at least notify patients that this procedure is available out there and I'll help you set up the appointment, but I don't do these myself. Cheyn, are you happy with any of that or would you demur?

Onarecker: Most of us would agree on many of those points. Physicians should provide patients with the information they need to make their own decisions. Most of my patients, though, don't expect me to be only a Wikipedia. They are interested in my thoughts about certain procedures and which ones I think would be more preferable, and I certainly don't give the same weight to certain options. If I have a 65-year-old man who's currently having severe chest pain, he has the option to go home, but I'm not going to give the same weight to that option as I am to persuading him that he needs to come in and be evaluated. So, I think you're right. I agree that there's a lot more we can do about finding ways to accommodate some of these more controversial objections than we do now.

I've heard Sandeep mention that if you're in an underserved area, patients don't have the choices they may have in a big city. In a lot of rural areas, they have no choice. There's no one out there. It seems that it would be unreasonable to deny those communities an enthusiastic, bright, competent, compassionate physician just because that physician wouldn't be willing to prescribe medications to assist someone in dying, for example.

Caplan: Sandeep, we'll give you the final word. Any light and peace generated by my little summary there?

Jauhar: I would simply reiterate that becoming a doctor is a choice. If you foresee problems in practicing in certain specialties, then you need to think about that right up front.

For example, I remember a case we had at NYU where a patient had a recurrent valve infection because he was using intravenous drugs. The surgeons balked at operating. The surgeon went to the ethics committee, and the head of the ethics committee said, "Look, I might not want to operate on this guy, but I didn't choose to be a surgeon." That clearly made a tremendous impact because the patient got his surgery the next week. So we suppress our moral views and our personal views all the time in service to our professional obligations. I don't see how this is that different.

Caplan: I want to thank both of you for your great insights. We'll get a lot of feedback, no doubt, from the viewership, and I want to encourage that. Please share your opinions with us.

Arthur L. Caplan, PhD, is director of the Division of Medical Ethics at New York University Langone Medical Center and NYU Grossman 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.

Sandeep Jauhar, MD, is associate professor of cardiology at Zucker School of Medicine at Hofstra/Northwell in Hempstead, New York, and a contributing opinion writer for The New York Times.

Cheyn D. Onarecker, MD, MA, is director of the Family Medicine Residency at St. Anthony Family Medicine Residency in Oklahoma City, Oklahoma, and chair of the healthcare ethics council for the Center for Bioethics and Human Dignity in Deerfield, Illinois.

Follow Medscape on Facebook, Twitter, Instagram, and YouTube

Comments

3090D553-9492-4563-8681-AD288FA52ACE
Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.
Post as:

processing....