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When Policy Produces Moral Distress: Reclaiming Conscience

Nancy Berlinger

Abstract
For too long, bioethics has followed law in reducing “conscience” to “conscientious objection,” in other words, to laws and policies permitting and protecting refusal. In “Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide,” Mara Buchbinder and colleagues draw our attention to one dimension of the problem of reducing conscience to refusal to provide certain forms of medical care: what about the conscience problems experienced by the professionals who are attempting to provide safe, effective health care that includes services that others associate with conscientious objection? In seeking to disrupt a specific medical practice – one that is legal, desired by the patient, and conducted in accordance with medical standards – North Carolina House Bill 854, The Women’s Right to Know Act, and laws like it, appear to be designed to produce moral distress in physicians and other professionals involved in the provision of abortions. For abortion providers in North Carolina and other states, conscientious objection to the mandates of laws like HB 854 isn’t a realistic option. So what can bioethics offer to professionals bound by such laws? We can start by reclaiming the idea of “conscience” as something that can say “yes” to providing health care.

Berlinger, N. (2016), When Policy Produces Moral Distress: Reclaiming Conscience. Hastings Center Report, 46: 32–34. doi: 10.1002/hast.547

Conscience, Courage, and “Consent”

Mark A. Hall, Nancy M. P. King

Abstract
On September 8, 2015, the Department of Health and Human Services issued a Notice of Proposed Rule Making to revise the Federal Policy for the Protection of Human Subjects, widely known as the “Common Rule.” The NPRM proposes several changes to the current system, including a dramatic shift in the approach to secondary research using biospecimens and data. Under the current rules, it is relatively easy to use biospecimens and data for secondary research. This approach systematically facilitates secondary research with biospecimens and data, maximizing the capacity for substantial public benefit. However, it has been criticized as insufficiently protective of the privacy and autonomy interests of biospecimen and data sources. Thus, the NPRM proposes a more restrictive regime, although more so for biospecimens than data. Both the status quo and the NPRM’s proposal are critically flawed.

Hall, M. A. and King, N. M. P. (2016), Conscience, Courage, and “Consent”. Hastings Center Report, 46: 30–32. doi: 10.1002/hast.546

Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide

Mara Buchbinder, Dragana Lassiter, Rebecca Mercier, Amy Bryant, Anne Drapkin Lyerly

Abstract
“It’s almost like putting salt in a wound, for this person who’s already made a very difficult decision,” suggested Meghan Patterson (an alias), a licensed obstetrician-gynecologist whom we interviewed in our qualitative study of the experiences of North Carolina abortion providers practicing under the state’s Woman’s Right to Know Act (House Bill 854; 2011). The act requires that women receive counseling with state-mandated information at least twenty-four hours prior to obtaining an abortion. After the law was passed, Patterson worked with clinic administrators, in consultation with a lawyer, to write a script to be used in the state-mandated counseling procedure. She and her colleagues took particular steps to mitigate the effects of what she described as HB 854’s “forced language” – such as referring to the “father of the child.” While HB 854 stipulated that patients must be informed of the medical risks associated with the particular abortion procedure as well as those of carrying the child to term, Patterson’s script made explicit the magnitude of comparative risks, emphasizing that the risks of carrying a pregnancy to term are substantially greater than the risks of an early-term abortion. She felt that these contextualization strategies helped to facilitate trust and rapport in a clinical care situation that proved relationally and morally challenging.

In this article, we take up and expand on this point by elucidating an empirically grounded approach to ethically justified care when health care providers face legal or institutional policy mandates that raise possible moral conflicts. Our approach builds on recent bioethics discourse addressing conscience in the practice of medicine. While the concept of conscience has broad philosophical underpinnings relating to moral judgment, agency, and discernments of right and wrong, debates in bioethics have tended to engage the concept primarily vis-à-vis rights of conscientious objection or refusal. Here, we suggest a broader frame for thinking about claims of conscience in health care. Our approach draws on the feminist bioethics and the ethics of care literatures to highlight how providers may be motivated by matters of conscience, including relational concerns, in the active provision of certain forms of care. What emerges are two possibilities: not only conscientious refusal to comply with a policy mandate but also conscientious compliance – working conscientiously within a mandate’s confines.

Buchbinder, M., Lassiter, D., Mercier, R., Bryant, A. and Lyerly, A. D. (2016), Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide. Hast Cent Rep , 46: 22–30. doi: 10.1002/hast.545

Legal and ethical aspects of organ donation after euthanasia in Belgium and the Netherlands

Jan Bollen,Rankie Ten Hoopen, Dirk Ysebaert, Walther van Mook, Ernst van Heurn

Abstract
Organ donation after euthanasia has been performed more than 40 times in Belgium and the Netherlands together. Preliminary results of procedures that have been performed until now demonstrate that this leads to good medical results in the recipient of the organs. Several legal aspects could be changed to further facilitate the combination of organ donation and euthanasia. On the ethical side, several controversies remain, giving rise to an ongoing, but necessary and useful debate. Further experiences will clarify whether both procedures should be strictly separated and whether the dead donor rule should be strictly applied. Opinions still differ on whether the patient’s physician should address the possibility of organ donation after euthanasia, which laws should be adapted and which preparatory acts should be performed. These and other procedural issues potentially conflict with the patient’s request for organ donation or the circumstances in which euthanasia (without subsequent organ donation) traditionally occurs.

Bollen J, Ten Hoopen R, Ysebaert D, van Mook W, van Heurn E. Legal and ethical aspects of organ donation after euthanasia in Belgium and the Netherlands. J Med Ethics. 2016 Aug;42(8):486-9. doi: 10.1136/medethics-2015-102898. Epub 2016 Mar 24.

The BMA’s guidance on conscientious objection may be contrary to human rights law

John Olusegun Adenitire

Abstract
It is argued that the current policy of the British Medical Association (BMA) on conscientious objection is not aligned with recent human rights developments. These grant a right to conscientious objection to doctors in many more circumstances than the very few recognised by the BMA. However, this wide-ranging right may be overridden if the refusal to accommodate the conscientious objection is proportionate. It is shown that it is very likely that it is lawful to refuse to accommodate conscientious objections that would result in discrimination of protected groups. It is still uncertain, however, in what particular circumstances the objection may be lawfully refused, if it poses risks to the health and safety of patients. The BMA’s policy has not caught up with these human rights developments and ought to be changed.

Adenitire JO. The BMA’s guidance on conscientious objection may be contrary to human rights law. J Med Ethics 2017;43:260-263.

The Challenges of Conscientious Objection in Health care

Hasan Shanawani

Abstract
Conscientious objection (CO) is the refusal to perform a legal role or responsibility because of personal beliefs. In health care, conscientious objection involves practitioners not providing certain treatments to their patients, based on reasons of morality or “conscience.” The development of conscientious objection among providers is complex and challenging. While there may exist good reasons to accommodate COs of clinical providers, the exercise of rights and beliefs of the provider has an impact on a patient’s health and/ or their access to care. For this reason, it is incumbent on the provider with a CO to minimize or eliminate the impact of their CO both on the delivery of care to the patients they serve and on the medical system in which they serve patients. The increasing exercise of CO, and its impact on large segments of the population, is made more complex by the provision of government-funded health care benefits by private entities. The result is a blurring of the lines between the public, civic space, where all people and corporate entities are expected to have similar rights and responsibilities, and the private space, where personal beliefs and restrictions are expected to be more tolerated. This paper considers the following questions: (1) What are the allowances or limits of the exercise a CO against the rights of a patient to receive care within accept practice? (2) In a society where there exist “private,” personal rights and responsibilities, as well as “civil” or public/shared rights and responsibilities, what defines the boundaries of the public, civil, and private space? (3) As providers and patients face the exercise of CO, what roles, responsibilities, and rights do organizations and institutions have in this interaction?

Shanawani H. The Challenges of Conscientious Objection in Health care. J Religion Health. 2016 Feb 29;55(2):384-393.

Conscientious objection in healthcare: why tribunals might be the answer

Steve Clarke

Abstract
An analogy is sometimes drawn between the proper treatment of conscientious objectors in healthcare and in military contexts. In this paper, I consider an aspect of this analogy that has not, to my knowledge, been considered in debates about conscientious objection in healthcare. In the USA and elsewhere, tribunals have been tasked with the responsibility of recommending particular forms of alternative service for conscientious objectors. Military conscripts who have a conscientious objection to active military service, and whose objections are deemed acceptable, are required either to serve the military in a non-combat role, or assigned some form of community service that does not contribute to the effectiveness of the military. I argue that consideration of the role that military tribunals have played in determining the appropriate form of alternative service for conscripts who are conscientious objectors can help us to understand how conscientious objectors in healthcare ought to be treated. Additionally, I show that it helps us to address the vexed issue of whether or not conscientious objectors who refuse to provide a service requested by a patient should be required to refer that patient to another healthcare professional.

Clarke S. Conscientious objection in healthcare: why tribunals might be the answer. J Med Ethics Feb 25. 2016;1-4.

In defence of medical tribunals and the reasonability standard for conscientious objection in medicine

Robert F Card

Extract
Cowley has recently objected to the idea of using a medical tribunal to make determinations regarding conscientious objections and has criticised using reasonability as a standard for any such tribunal. . . . I argue that Cowley’s discussion sells the idea of medical tribunals short and illustrates serious misunderstandings regarding how the reasonability standard should be deployed in practice.

Card RF. In defence of medical tribunals and the reasonability standard for conscientious objection in medicine. J Med Ethics 2016 Feb;42(2):73-5. doi: 10.1136/medethics-2015-103037

US primary care physicians’ opinions about conscientious refusal: a national vignette experiment

Farr Curlin, JD Yoon, SG Brauer

Abstract
Objective: Previous research has found that physicians are divided on whether they are obligated to provide a treatment to which they object and whether they should refer patients in such cases. The present study compares several possible scenarios in which a physician objects to a treatment that a patient requests, in order to better characterise physicians’ beliefs about what responses are appropriate.

Design: We surveyed a nationally representative sample of 1504 US primary care physicians using an experimentally manipulated vignette in which a patient requests a clinical intervention to which the patient’s physician objects. We used multivariate logistic regression models to determine how vignette and respondent characteristics affected respondent’s judgements.

Results: Among eligible respondents, the response rate was 63% (896/1427). When faced with an objection to providing treatment, referring the patient was the action judged most appropriate (57% indicated it was appropriate), while few physicians thought it appropriate to provide treatment despite one’s objection (15%). The most religious physicians were more likely than the least religious physicians to support refusing to accommodate the patient’s request (38% vs 22%, OR=1.75; 95% CI 1.06 to 2.86).

Conclusions: This study indicates that US physicians believe it is inappropriate to provide an intervention that violates one’s personal or professional standards. Referring seems to be physicians’ preferred way of responding to requests for interventions to which physicians object.

Brauer SG, Yoon JD, Curlin FA US primary care physicians’ opinions about conscientious refusal: a national vignette experiment. J Med Ethics. 2016 Feb;42(2):80-4. doi: 10.1136/medethics-2015-102782. Epub 2015 Jul 1.

Striking a Balance Between Faith and Freedom: Military Conscientious Objection as a Model for Pharmacist Refusal

Maria Teresa Weidner

Lexis Nexis Summary
Pharmacists who have subscribed to this movement assert that they have a “right” to refuse to fill valid patient prescriptions whenever doing so might violate their own religious or moral beliefs. … The governments of Arkansas, Florida, and South Dakota sought to both endorse and shield from liability instances of religiously motivated pharmacist refusal to dispense family planning products. … Such expectations, as demonstrated in the policy positions set forth by organizations like the American Pharmacists Association (APhA) and Pharmacists for Life, harm the profession by undermining its credibility while underscoring the need to preserve the regulating power of liability as a tool to protect patient interests. … These factors, compounded with the profession’s own struggle for professional legitimacy and insistence on recognition of the practitioners’ “clinical role” in the provision of medication to patients indicate that a defense against alleged malpractice based on a free exercise theory would not succeed both based on the secular nature of the profession and as a matter of existing free exercise jurisprudence. … South Dakota’s legislature has already demonstrated as much by including a provision in its pharmacist refusal clause permitting pharmacists to refuse to dispense palliative drugs that might be used to hasten death, clearly a measure that can affect women and men alike

Weidner MT. Striking a Balance Between Faith and Freedom: Military Conscientious Objection as a Model for Pharmacist Refusal. J Gender, Race & Just. 2008 Jan;11(2):369-408