Law Archives - Page 22 of 39 - Protection of Conscience Project Library

On Whose Conscience? Patient Rights Disappear Under Broad Protective Measures for Conscientious Objectors in Health Care

Patricia L Selby

Extract
In 2004 the Michigan House passed a bill called the “Conscientious Objector Policy Act.”. . . The bill as passed reflected no balancing of or respect for patients’ rights to autonomy, or their other needs and interests.

This article traces brief histories of health care conscience clauses and the patient’s right to informed consent. It analyzes the bill in the context of patients’s rights, and proposes alternative approaches to restore balance to the patient-provider relationship, while maintaining providers’ right to conscience. The article’s final section evaluates a variety of potential legal challenges to protect patients if the bill is re-introduced unchanged.

Selby PL. Patient Rights Disappear Under Broad Protective Measures for Conscientious Objectors in Health Care. U Detroit Mercy Law Rev. 2006;83(4):507-541.

Assisted Suicide & Euthanasia: a Proposal for Restructuring the Criminal Code of Canada

Eike-Henner Kluge

Extract
There are other flaws with Bill C-407, but this is not the place to present them in detail. However, there is one serious flaw that is appropriately considered in this forum, and that is the fact that the Bill is a partial measure at best. It deals only with assisted suicide, not euthanasia. It would not help those who, although competent, could not perform the final act themselves because they are disabled. . . .As well, the Bill ignores those who have never been competent and never will be. Their rights would still be less than those of other persons: they would be condemned to suffer when a competent person would not. An appropriately crafted suicide and euthanasia Bill would change that situation.

Kluge E-H. Assisted Suicide & Euthanasia: a Proposal for Restructuring the Criminal Code of Canada. Humanist Perspectives Online Supplement. 2005;38(4):1-5

Defining the limits of conscientious objection in health care

J Andrew West

Extract
I will argue that we should prefer narrow conscience clauses because they (1) respect patients’ right to informed consent and (2) reduce risks to vulnerable populations. I will then propose and defend an example of what a narrow conscience clause might look like. The clause I propose allows: (1) any person (2) directly involved in providing (3) nonemergency medical treatment or service (4) to refuse to provide the treatment or service in question, so long as the person (5) objects on moral or religious grounds and (6) cooperates in the transfer or referral of the patient to a willing provider. Before I turn to these arguments, a brief overview of the genesis and evolution of conscience clauses in medicine is in order.

West JA. Defining the limits of conscientious objection in health care. Newsletter Phil Med. 2005 Fall;5(1):25-34.

(Correspondence) The Celestial Fire of Conscience: Prof. Charo Replies

R Alta Charo

New England Journal of Medicine, NEJM — New England Journal of Medicine

Extract
With regard to Dr. Lee’s comment that the proposed Wisconsin legislation does not eliminate a health care provider’s duty to provide a referral after refusing to perform a service, I would note that Assembly Bill 207 . . . specifically permits health care providers’ refusals to “participate in” services they find personally objectionable, with “participate in” specifically defined . . . as “to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense or administer drugs”.

Charo RA. (Correspondence) The Celestial Fire of Conscience: Prof. Charo Replies. N Engl J Med. 2005 Sep 22;353(12):1302.

Obstacles to Access: How Pharmacist Refusal Clauses Undermine the Basic Health Care Needs of Rural and Low-Income Women

Holly Teliska

Extract
If pharmacists object to particular prescriptions, they should only be allowed to refuse to fill the prescription if meaningful and logistically feasible alternatives are in place. As an alternative, either another pharmacist must be on duty with the refusing pharmacist, or alternative ways of providing service must be in place. A woman should not have to travel to other pharmacies in search of a pharmacist that serves all patients, nor should she have to wait an unreasonable amount of time to have her prescription filled.

Teliska H. Obstacles to Access: How Pharmacist Refusal Clauses Undermine the Basic Health Care Needs of Rural and Low-Income Women. Berkely J Gender, Law Justice. 2005;20(1):229-248.

Prescription Ethics: Can States Protect Pharmacists Who Refuse to Dispense Contraceptive Prescriptions?

Maryam T Afif

Extract
Conclusion
Offering legal protection to pharmacists comes at too great a cost to women’s health and legal rights. The pill is a viable and effective method of birth control for many women and, as Congress has noted, it can be used to prevent other social, economic, and medical problems. The Supreme Court has clearly established that a state cannot interfere with a woman’s right to access contraceptives, including the pill. While pharmacists should be free to practice their religion, that practice cannot interfere with their professional duty to dispense valid prescriptions free of moral judgment. Furthermore, the vague wording in most conscience clause statutes does not restrict objections to those of a religious nature. A pharmacist can use any personal moral objection as an excuse not to dispense a prescription. The result of a pharmacist’s objection can be quite severe for the patient (an unintended pregnancy or health problems), and the duties imposed under tort law should apply. A pharmacist should not be able to escape the legal consequences of his or her actions. States that allow pharmacists to do so are clearly protecting the rights of a small segment of their citizens at the expense of others. If these statutes are challenged in court, it is likely that the statutes will be found to be unconstitutional. While this is a serious consequence, it is appropriate given the rights at stake.

Afif MT. Prescription Ethics: Can States Protect Pharmacists Who Refuse to Dispense Contraceptive Prescriptions? Pace Law Review. 2005;26(1):243-272.

The Celestial Fire of Conscience — Refusing to Deliver Medical Care

R Alta Charo

Abstract
Apparently heeding George Washington’s call to “labor to keep alive in your breast that little spark of celestial fire called conscience,” physicians, nurses, and pharmacists are increasingly claiming a right to the autonomy not only to refuse to provide services they find objectionable, but even to refuse to refer patients to another provider and, more recently, to inform them of the existence of legal options for care.

Charo RA. The Celestial Fire of Conscience — Refusing to Deliver Medical Care. N Engl J Med.. 2005 Jun 16;352(24).

Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions

Matthew White

Abstract
Conclusion
. . .The patchwork of current conscience protection for pharmacists indisputably fails its purpose-in almost all cases the current legislation is severely one-sided and out of date. Although such conscience protection admirably attempts to embody the purposes of the First Amendment, most of the actual and proposed legislation suffers from severe partisan myopia. Statutes purporting to offer absolute protection to patients, to employers, or to health care providers rather than striking a balance tend to prolong and enlarge conflict rather than resolve it. . .

Patients, pharmacists, and employers all have civil rights implicated in the delicate interactions that surround the use of oral contraception, and decisive action should be taken to enact statutes that protect the rights of each, rather than statutes that protect one group exclusively. Legislators should make a painstaking effort to craft new conscience legislation that protects the conscience rights of pharmacists without inserting the pharmacist between the patient and her doctor. Such legislation should also make some provision for employers that would be substantially burdened by an inability to conduct their business in the event of a bona fide conscience claim.

White M. Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions. Wisc Law Rev. 2005;6(1611-1648.

Of Pills and Needles: Involuntary Medicating the Psychotic Inmate When Execution Looms

Julie Cantor

Extract
The coalescence of involuntarily administered antipsychotic medications and competency for execution created a novel and controversial issue that became the basis of Singleton’s final appeal. The Arkansas Supreme Court stated the question succinctly: May the State ”mandatorily medicate [Singleton] with antipsychotic drugs in order to keep him from being a danger to himself and others when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution[?]” Or, as Singleton put it, “Am I too sane to live, or too insane to die?” The cynical view of that question is that Singleton was clever and manipulative. Like most people, he would do just about anything to forestall his death. The more charitable view is that Singleton found an Achilles heel in the execution process and physicians’ involvement with it, one that created what some physicians consider to be an intolerable dilemma.

Cantor J. Of Pills and Needles: Involuntary Medicating the Psychotic Inmate When Execution Looms. Indiana Health L Rev. 2005;2(1):119-172.

Unspeakably Cruel-Torture, Medical Ethics, and the Law

George J Annas

Extract
The Nazi doctors defended themselves primarily by arguing that they were engaged in necessary wartime medical research and were following the orders of their superiors. These defenses were rejected because they are at odds with the Nuremberg Principles, articulated a year earlier, at the conclusion of the multinational war crimes trial in 1946, that there are crimes against humanity (such as torture), that individuals can be held to be criminally responsible for committing them, and that obeying orders is no defense.

Annas GJ. Unspeakably Cruel-Torture, Medical Ethics, and the Law. N. Engl. J. Med.. 2005;352(20):2127-2132.