March 25, 2012 | 1
Thanks in no small part to the invitation of the fantastic Doctor Zen, I was honored this past week to be a participant in the PACE 3rd Annual Biomedical Ethics Conference. The conference brought together an eclectic mix of people who care about bioethics: nurses, counselors, physicians, physicians’ assistants, lawyers, philosophers, scientists, students, professors, and people practicing their professions out “in the world”.*
As good conferences do, this one left me with a head full of issues with which I’m still grappling. So, as bloggers sometimes do, I’m going to put one of those issues out there and invite you to grapple with it, too.
A question that kept coming up was what exactly it means for a health care provider (broadly construed) to fulfill hir duties to hir patient/client.
Of course, the folks in the ballroom could rattle off the standard ethical principles that should guide their decision-making — respect for persons (which includes respect for the autonomy of the patient-client), beneficence, non-maleficence, justice — but sometimes these principles seem to pull in different directions, which means just what one should do when the rubber hits the road is not always obvious.
1. In some states, health care professionals are “mandatory reporters” of domestic violence — that is, if they encounter a patient who they have reason to believe is a victim of domestic violence, they are obligated by law to report it to the authorities. However, it is sometimes the case that getting the case into the legal system triggers retaliatory violence against the victim by the abuser. Moreover, in the aftermath of reporting, the victim may be less willing (or able) to seek further medical care. Is the best way to do one’s duty to one’s patient always to report? Or are their instances where one better fulfills those duties by not reporting (and if so, what are the foreseeable costs of such a course of action — to that patient, to the health care provider, to other patients, to the larger community)?
2. A patient with a terminal illness may feel that the best way for hir physician to respect hir autonomy would be to assist hir in ending hir life. However, physician-assisted suicide is usually interpreted as clearly counter to the requirements of non-maleficence (“do no harm”) and beneficence. In most of the U.S., it’s also illegal. Can a physician refuse to provide the patient in this situation with the sought-after assistance without being paternalistic?** Is it fair game for the physician’s discussion with the patient here to touch on personal values that it might not be fair for the patient to ask the physician to compromise? Are there foreseeable consequences of what, to the patient, looks like a personal choice that might impact the physician’s relationship with other patients, with hir professional community, or with the larger community?
3. In Texas, the law currently requires that patients seeking abortions must submit to transvaginal ultrasounds first. In other words, the law requires health care provider to subject patient to a medically unnecessary invasive procedure. The alternative is for the patient to carry to term an unwanted pregnancy. Both choices, arguably, subject the patient to violence.
Does the health care provider who is trying to uphold hir obligations to hir patient have an obligation to break the law? If it’s a bad law — here, one whose requirements make it impossible for a health care provider to fulfill hir duties to patients — ought health care providers to put their own skin in the game to change it?
Here’s what I’ve written before about how ethically to challenge bad rules:
If you’re part of a professional community, you’re supposed to abide by the rules set by the commissions and institutions governing your professional community.
If you don’t think they’re good rules, of course, one of the things you should do as a member of that professional community is make a case for changing them. However, in the meantime making yourself an exception to the rules that govern the other members of your professional community is pretty much the textbook definition of an ethical violation.
The gist here is that sneakily violating a bad rule (perhaps even while paying lip service to following it) rather that standing up and explicitly arguing against the bad rule — not just when it’s applied to you but when it’s applied to anyone else in your professional community — is wrong. It does nothing to overturn the bad rule, it involves you in deception, and it prioritizes your interests over everyone else’s.
The particular situation here is tricky, though, given that as I understand it the Texas law is a rule imposed on medical professionals by lawmakers, not a rule that the community of medical professionals created and implemented themselves the better to help them fulfill their duties to their patients. Indeed, it seems pretty clear that the lawmakers were willing to sacrifice duties that are absolutely central in the physician-patient relationship when they imposed this law.
Moreover, I think the way forward is complicated by concerns about how to ensure that patients get care that is helpful, not harmful, to them. If Texas physicians who opposed the mandatory transvaginal ultrasound requirement were to fill the jails to protest the law, who does that leave to deliver ethical care to people on the outside seeking abortions? Is this a place where the professional community as a whole ought to be pushing back against the law rather than leaving it to individual members of that community to push back?
* * * * *
If these examples have common threads, one of them is that what the law requires (or what the law allows) seems not to line up neatly with what our ethics require. Perhaps this speaks to the difficulty of getting laws to capture the tricky balancing act that acting ethically towards one’s patients/clients requires of health care professionals. Or, maybe it speaks to law makers not always being focused on creating an environment in which health care providers can deliver on their ethical duties to their patients/clients (perhaps even disagreeing with professional communities about just what those ethical duties are).
What does this mismatch mean for what patients/clients can legitimately expect from their health care providers? Or for what health care providers can realistically deliver to their patients/clients?
And, if you were a health care provider in one of these situations, what would you do?
*Arguably, however, universities and their denizens are also in the world. We share the same fabric of space-time as the rest of y’all.
**Note that paternalism is likely warranted in a number of circumstances. However, when we’re talking about a patient of sound mind, maybe paternalism shouldn’t be the physician’s go-to stance.