HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, June 17, 2005

"Conscience" statues and Refusing to Provide Medical Care

The New England Journal of Medicine has published an article by Alta Charo in which she addresses the issue of physicians, nurses and pharmacists claiming the right not only to refuse to provide services they find objectionable, but also to refuse to refer patients to another provider and to inform them of the existence of legal options for care.  She offers the example of a bill introduced in the Wisconsin legislature:

[It] would permit health care professionals to abstain from "participating" in any number of activities, with "participating" defined broadly enough to include counseling patients about their choices.  The privilege of abstaining from counseling or referring would extend to such situations as emergency contraception for rape victims, in vitro fertilization for infertile couples, patients' request that painful and futile treatments be withheld or withdrawn, and therapies developed with the use of fetal tissue or embryonic stem cells.  This last provisions would mean, for example, that pediatricians without professional penalty or threat of malpractice claims could refuse to tell parents about the availability of varicella vaccine for their children, because it was developed with the use of tissue from aborted fetuses.

She comments on physicians who claim that the right to practice their religion requires that they not be made complicit in any practice to which they have moral or religious objections .  She adds that "the professionals involved seek to protect only themselves from the consequences of their actions - not their patients."  This "conscience without consequence" trend can be attributed to the emerging norm of patient autonomy and the abortion wars.   She says that patient autonomy has eroded the professional stature of medicine, and with that, the notion of extraordinary duty.   The article then addresses the necessity of collective obligation and a genuine system for counseling and referring patients so that every patient like their doctor can act according to her own conscience. 


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