Clinical Ethics in Anesthesiology. A Case-Based Textbook

6. Anesthesiologists, the state, and society

43. Physician conscientious objection in anesthesiology practice

Cynthiane J. Morgenweck and Stephen Jackson

The Case

An anesthesiologist learns of an assignment in an isolated, off-campus location on the day of the procedure, which is a transvaginal oocyte retrieval. During conversation with the patient in the preanesthesia area, he learns that she is having pre-implantation genetic diagnostic studies of any fertilized eggs, and that these results will determine future options, which include deciding to reject and discard any that would test positive for rare inheritable diseases such as cystic fibrosis. The anesthesiologist believes that this case should not have been assigned to him as he previously had stated to his department that he has a conscientious objection to participating in certain reproductive procedures. Time is of the essence as the infertility obstetrician indicates that the timing of the retrieval must take place within the next hour.

Perhaps the most fundamental political ideal in the US is that one should be free to pursue whatever conceptions of “the good” one desires (autonomy), but subject to the limitation of avoiding acts that are harmful to others (nonmaleficence). As such, there is general acceptance of rights-of-conscience, which in this chapter we shall refer to as conscientious objection – a refusal by a physician to act in a way that is not in accord with deeply valued personal beliefs. In the scenario above, however, insistence on withdrawal from providing care not only could result in harm to the patient, but will disrupt the efficiency of institutional operational functions (with attendant adverse economic consequences), potentially incurring the wrath of unsympathetic coworkers (including those of the anesthesiology department). The potential to create not only physiologic but also psychological harm to this patient is ethically preeminent.

In this case the infertility obstetrician already has “contracted” for services with the patient, and, per routine has “arranged” for anesthesia services. However, the “contract” between patient and anesthesiologist does not take hold until the agreement between them actually has occurred. It is reasonable for the patient to expect unimpeded care by a team of physicians led by her infertility obstetrician.

The anesthesiologist in this case has unwittingly been placed in the position of being expected to provide anesthesia for a procedure that could lead to events that are in violation of his deeply held moral convictions. Perhaps the most common example of conscientious objection for anesthesiologists in the US is that of anesthetizing a patient who is having an abortion. Indeed, the federal government has promulgated healthcare workers’ right-to-conscience protection laws, rules, and regulations. However, federal employment laws require the balancing of reasonable accommodation for employees who have religious, ethical, or moral objections to specific aspects of their jobs with the resultant hardships that would burden employers given their accommodations of the employees’ beliefs. The needed delay to rectify our anesthesiologist’s assignment, given the extremely tight window of opportunity for the success of this infertility process (retrieval of high quality oocytes) has the potential to violate the contract between the infertility obstetrician and the patient.

The following discussion is limited to requested medical services that have been deemed medically appropriate and to which there is legal entitlement. The focus will be on why conscientious objection (refusal) by physicians is generally considered ethical behavior; however, there are controversial caveats.

Validity of conscientious objection

In the US, citizens are permitted significant latitude in defining the personal beliefs and values they adopt for themselves. Furthermore, in developing a lifestyle that is congruent with their moral convictions, they need not be concerned with personal safety because their beliefs might be construed as those of a minority. When claiming conscientious objection, individuals endeavor to preserve a sense of self, their integrity or wholeness that enables their human spirit to flourish. Americans value the diversity of its citizenship and its attendant disparate convictions and lifestyles. Because respect for conscientious objection is based, at least in part on respect for personal integrity, some understanding of integrity is in order.

Personal integrity includes a set of coherent principles that have been expressed verbally (or in writing), and manifest conduct that is consistent with those stated principles. “One’s words and deeds generally [should] be true to a substantive, coherent and relatively stable set of values and principles to which one is genuinely and freely committed.”1 These core values are arrived at over time – and even may change over a lifetime – as each member of society decides how to live an individually satisfying life within the framework of common social goals. Yet, there may be tension among competing principles as problems can arise that are impossible to resolve by adherence to one principle without violation of another. For individuals to retain their integrity, their values and actions ought to be relatively constant over time.

Moral distress may occur when an individual is manipulated or coerced into performance of actions contrary to core values. A person’s conscience must assess whether or not such behavior is permissible within the context of those core values. If deemed impermissible, then it is reasonable to refuse to perform otherwise socially acceptable – or even expected – actions, particularly if that individual is willing to accept the consequences – even harm – of such refusal. Society has codified that an individual’s core values, should they fail to coincide with established societal core values, are, nonetheless, potentially socially permissible. Witness certain of the more common types of conscientious objection, such as refusal of vaccinations and military service. Indeed, for healthcare providers, there are legal precedents and protections afforded to those who conscientiously object to participation in services to which the patient is legally entitled, therein setting the stage for ethical debate.

Concerns with conscientious objection

There are concerns with the potential abuse of conscience clauses as they could involve the inappropriate application of personal beliefs to the physician–patient relationship. Indeed, invocation of a conscience clause could serve as a subterfuge for discrimination against patients based on characteristics of the patient such as race, gender, religion, sexual orientation and so forth.

Refusal by a physician to perform a service based on conscientious objection may constitute only part of what is entailed in an objection. The generally accepted obligation of a physician after refusal is to facilitate the referral and orderly transfer of the patient to another physician willing to perform the procedure. However, the objecting physician may strongly believe that even making such a referral constitutes complicity in the objectionable procedure. Others, however, construe such conscience-based refusal to refer as patient abandonment.

The possibility always exists that referral to a qualified nonobjector may not be feasible. Referral even may create new problems: the receiving physician is physically at a considerable distance; or the service in question is of an urgent nature and further delay is harmful to the patient; or a health insurance plan refuses to reimburse the services of the receiving physician and/or institution not contracted with that plan. Recently, the Constitutional Court of the country of Columbia issued a ruling that limited the claim of conscientious objection by institutions although objection by an individual physician is to be honored.2 The ruling stated that an institution does not have such a safe harbor, and further, it must provide a means of access for legally sanctioned services. Lynch takes a similar stance, suggesting that state licensing boards should be tasked with assuring timely patient access to physicians and services by directing areas of practice for physicians based on their conscientious objections.3

It is suggested that there are degrees of immorality, and in general, physicians who conscientiously object do so when they judge that the process in which they would participate is sufficientlyimmoral. The physician has judged that participation is immoral because the physician will facilitate the ability of the patient to engage in immoral activity. Note that the statutory conscience clause protections are directed at physicians and other healthcare workers. There is no protection for the patient’s fundamental medical entitlement to the procedure: it is the patient who is powerless. Many argue that, in an emergency situation, this powerlessness creates an ethical obligation for the objecting physician to provide the services if there is no other physician to perform the service, referral and transfer are not possible, or delay would further imperil the patient’s life.

The social contract

Becoming a physician is a voluntary act and one in which physicians enter into an informal contract with society at large. Society bestows benefits attendant to the practice of medicine in return for which the physician has an obligation to perform according to the medical profession’s mores and standards. In essence, society gives physicians significant control of their work in exchange for their placing foremost the best interests of society and its citizens. Physicians as a group, therefore, decide who will be admitted to the profession, how they will be educated and credentialed, what standards of care are appropriate, and what constitutes appropriate research. There are, of course, external controls (laws), but medicine – as other professions – is given significant latitude in deciding how to conduct its work.

This social contract between society and the medical profession is characterized by a continuous discourse between parties, with corrections and redirections. Indeed, conceived as a shift toward patient autonomy within the past half century, society has urged physicians to have their patients become more fully participatory in medical decision-making. The preeminence of informed consent signifies this radical ethical shift pursuant to the demise of physician paternalism.

The issue of conscientious objection by a physician enters center stage here: although physicians do have personal core values that guide the conduct of their practice, these generally ought not take precedence over professional standards of practice and respect for patient self-determination. The professional role of a physician requires provision of care (appropriate to his/her skill set) for all who suffer, not just those with coinciding belief systems. A patient’s expectation of receiving an unwavering standard of competent care from those with the expertise and license to practice is a fundamental element of the social contract. The patient–physician relationship is, in part, based upon the physician’s specialized knowledge and skills, and therein places the physician in a position of power to usurp the moral convictions of the patient. In the introductory case, the power dynamic between physician and patient is skewed toward the physician, and the time pressure is so urgent that there is little time for any discussion of conflicting values, no less negotiation.

“Preventive” ethics

By the completion of one’s residency, an anesthesiologist should have a thorough understanding of what procedures, if any, he/she will not perform based on conscientious objection. The knowledge should be translated into requests for policies to address conscientious objection concerns before there is a case such as the one introducing this chapter. Physicians should not choose specialties that constitute moral minefields for them. Anesthesiologists interface with many other physicians in the medical field. They are likely to encounter moral dilemmas not only in the field of reproductive biology, but also in transplant medicine, critical care medicine (especially end-of-life issues) and pain management. A practice situation should be chosen that likely would lead to few, if any, scenarios calling for conscientious objection, unless the practice is able to support and accommodate that anesthesiologist’s personal values. If the lay community expects to have access to procedures that are contrary to the anesthesiologist’s deeply held values, then there should be concern that the practice is not a proper fit. If an anesthesiologist chooses to invoke conscientious objection, then it ought not to be at the last moment, but rather with ample time for deliberation, discourse and planning to avoid the potential contentions and troublesome consequences pursuant to a last minute objection. The reason for such objections should be constant over time so as to preclude the loss of support from colleagues and accusations of discrimination or unwillingness to carry one’s share of the workload.

It should be noted that the American Medical Association’s Principles of Medical Ethics,4 recognized as a basic guide to ethical conduct, are included in the American Society of Anesthesiologists’Guidelines for the Ethical Practice of Anesthesiology.5 Specifically, AMA Principle VI declares:

A physician shall, in the provision of appropriate patient care except in emergencies, be free to choose whom to serve, with whom to associate and the environment in which to provide medical care.

Whereas these guidelines do not address conscientious objection, conflict resolution is offered for the conscientious objector in the American Society of Anesthesiologists’ Ethical Guidelines for the Anesthesia Care of Patients with Do-Not-Resuscitate Orders or Other Directives that Limit Treatment:When an anesthesiologist finds the patient’s or surgeon’s limitations of intervention decisions to be irreconcilable with one’s own moral views, then the anesthesiologist should withdraw in a nonjudgmental fashion, providing an alternative for care in a timely fashion.6

Key points

• Our society supports an individual’s right to conscientious objection, to refuse an action that is not in accordance with one’s deeply held moral convictions.

• A sense of personal integrity is based on conduct that is consistent with an expressed set of coherent principles and values.

• There are legal protections for physicians who conscientiously refuse to participate in medical services to which the patient is legally entitled.

• There is a potential for abuse of statutory conscience clauses protecting physicians should they inappropriately apply their personal moral convictions to the physician–patient relationship.

• Most ethical dilemmas raised by conscientious refusal can be prevented by forethought, communication, planning and accommodation.

• Pursuant to the social contract between society and the profession of medicine, physicians should provide appropriate care for all patients, not just those with coinciding belief systems.

• When feasible, and excepting emergencies, the refusing physician’s ethical duty is to facilitate referral and orderly transfer to a competent physician willing to perform the service that was requested of the conscientious objector. Such referral and transfer do not equate to complicity.

References

1* Benjamin, M. (1990). Splitting the Difference. Kansas: Lawrence University Press.

2* Cook, R.J.Olaya, M.A., and Dickens, B.M. (2009). Healthcare responsibilities and conscientious objection. Internat J Gyn and Obstet104, 249–52.

3* Lynch, H. (2008). Conflicts of Conscience: An Institutional Compromise. MA: MIT Press.

4 Accessible at the American Medical Association website: www.ama-assn.org.

5 Accessible at the American Society of Anesthesiologists website at: http://www.asahq.org/publicationsAndServices/standards/10.pdf.

6 Accessible at the American Society of Anesthesiologists website at:http://www.asahq.org/publicationsAndServices/standards/09.pdf.

Further reading

American Academy of Pediatrics, Committee on Bioethics. (2009). Physician refusal to provide information or treatment on the basis of claims of conscience. Pediatrics124(6), 1689–93.

Brock, D.W. (2008). Conscientious refusal by physicians and pharmacists: who is obligated to do what, and why? Theor Med Bioeth29, 187–200.

Cantor, J. (2009). Conscientious objection gone awry – restoring selfless professionalism in medicine. NEJM360, 1484–5.

Davis, J.K. (2004). Conscientious refusal and a doctors’ right to quit. J Med Phil29, 75–91.

Fjellstrom, R. (2005). Respect for persons, respect for integrity. Med Health Care Phil8, 231–42.

Lawrence, R.E. and Curlin, F.A. (2007). Clash of definitions: controversies about conscience in medicine. AJOB7, 10–14.

May, T. and Aulisio, M.P. (2009). Personal morality and professional obligations. Persp Bio Med52, 30–8.

Pelligrino, E.D. (2002). The physician’s conscience, conscience clauses, and religious belief: a catholic perspective, Fordham Urban Law Journalhttp://www.thefreelibrary.com/The physician’s conscience, conscience clauses and religious belief:…-a097823705. (Accessed November 5, 2008).

Savulescu, J. (2007). Conscientious objection in medicine. BMJ332, 294–7.

Sulmasy, D.P. (2008). What is conscience and why is respect for it so important? Theor Med Bioeth29, 135–49.

Wardle, L.D. (2005). Five reasons why rights of conscience must be protected. Linacre Quarterly72, 158–63.