American Journal of Law & Medicine

Mandating Disclosure of Conscience-Based Limitations on Medical Practice

Stakeholders in law, medicine, and religion are unable to reach consensus about how best to address conflicts between healthcare providers' conscientious objections to treatment and patients' rights to access medical care. Conscience laws that protect objecting providers and institutions from liability are criticized as too broad by patient advocates and as too narrow by defenders of religious freedom. This Article posits that some of the tension between these stakeholders could be mitigated by statutory recognition of a duty on the part of healthcare institutions or providers to disclose conscientiously motivated limitations on practice. While this solution would not guarantee a patient's access to treatment, referral, or information from any given provider, it would prevent some of the more egregious cases of denial of treatment--those where patients are not made aware that a legal and clinically defensible treatment option is excluded from a provider's or institution's scope ofpractice and so have no opportunity to seek care elsewhere.

I.   INTRODUCTION
II.  SCOPE OF THE CONFLICT
     A. PRELIMINARY DEFINITIONS
     B. PROVIDER LIMITATIONS AND PATIENT AWARENESS
     C. CONSEQUENCES FOR PATIENTS
III. CRAFTING A DISCLOSURE DUTY
     A. FULL INFORMATION
     B. NO INFORMATION
     C. LIMITED DISCLOSURE
IV.  LEGAL FOUNDATIONS
     A. FIDUCIARY PRINCIPLES
     B. INFORMED CONSENT
        1. Physician Characteristics, Patient Risk, and
           Treatment Alternatives
        2. Physician Conflicts Affecting Medical Judgment
V.   CONCERNS, CAUTIONS, AND PRACTICAL IMPLEMENTATION
     A. Erosion of Trust in the Medical Profession
     B. Constitutional Considerations
     C. Disclosure as Moral Complicity or Cooperation
     D. Physician Privacy
     E. Dignitary Harms to Patients
VI.  CONCLUSION

I. INTRODUCTION

Stakeholders in law, medicine, and religion have been unable to reach consensus about how best to address conflicts between healthcare providers' religious and conscience-based objections to treatment and patients' rights to access medical care. State conscience laws that protect objecting providers and institutions from liability have been criticized as too broad by patient advocates and too narrow by defenders of religious freedom.

This Article posits that some of the tension between these stakeholders could be mitigated by recognition of a legal duty on the part of healthcare providers or institutions to disclose religiously-motivated or conscientiously-motivated limitations' on medical practice. (2) The most pragmatic and easily implemented solution is for legislatures to adopt limited disclosure mandates that track other consumer protection and disclosure laws. Such disclosure laws would not conflict with existing federal or state conscience laws and would hopefully find support on both ends of the political spectrum. Furthermore, justification for such legislation would be strengthened by the fact that common law principles of fiduciary duty and informed consent in medical practice arguably support the imposition of a duty on physicians to disclose personal commitments that impact the provision of a case. That said, this Article ultimately concludes that a disclosure mandate would operate best at the institutional level by requiring healthcare facilities to notify patients of any conscience-based limitations on either the clinical care that is provided or the information that is shared with patients by individual providers within the facility or by the facility itself.

From the perspective of patient advocates, this solution is not ideal because it would not guarantee a patient's access to treatment, referrals, or information from any given provider. Critics of broad conscientious objection laws may oppose such a disclosure requirement on the grounds that it further legitimizes some physicians' decisions to prioritize their own interests over those of their patients, arguably violating the ethical obligations of the medical profession. (3) And while these criticisms have merit, the plain reality of the American political environment is such that most policymakers simply will not consider rolling back existing legal protections for conscientious refusals by medical providers. (4) In this context, the only feasible approach is an incremental one; imposing a legal duty to inform patients of religious or conscientious limitations on medical practice would be a powerful but realistic step in the right direction. This duty would serve to protect patients by preventing some of the most egregious cases of denial of treatment--those where patients are not made aware that a legal and clinically defensible (but controversial) medical service is excluded from a provider's or institution's scope of practice and therefore have no opportunity to seek care elsewhere. One such example is the recent case of Tamesha Means, a pregnant woman whose water broke at eighteen weeks. Means was twice sent home from a Catholic hospital without being informed that continuing her pregnancy was extremely risky and that the recommended medical treatment in such cases is induction of early labor and termination of pregnancy. (5)

This Article proceeds in four parts. Part II presents evidence that patients seeking medical care that some providers or institutions oppose on grounds of conscience are often unable to access such care. These patients may also be unaware of the full scope of medical options available to them due to incomplete provision of information, further limiting their opportunities to seek treatment elsewhere and often resulting in unwanted or adverse health consequences. Part III describes the benefits of imposing upon healthcare providers or institutions a limited duty to disclose conscience-based limitations for treatment and provision of information and explains how such a statutory disclosure duty might operate. Part IV demonstrates that such a disclosure duty is consistent with common law principles of fiduciary duty and informed consent, both of which are grounded in ethical principles of patient primacy. Finally, Part V addresses possible challenges to the establishment of a disclosure duty by arguing that neither concerns about the disclosure laws' impact on the physician-patient relationship, constitutional issues, or complicity and privacy objections, nor concerns about imposing dignitary harms on patients are strong enough to overcome the merits of the limited disclosure model proposed herein.

II. SCOPE OF THE CONFLICT

Many healthcare providers, both individual and institutional, maintain religious or conscientious commitments that prohibit them from offering certain forms of medical treatment. (6) In the context of reproductive care, for example, some providers may express objections to contraception, emergency contraception, abortion, tubal ligation, or prenatal genetic testing. Other providers object to certain aspects of end-of-life care, including withholding or withdrawal of life-sustaining treatment, the provision of futile care, palliative sedation, or physician aid-in-dying. Healthcare providers who choose not to provide these treatments are, in many cases, protected from civil liability, professional discipline, and adverse employment actions by a spectrum of federal and state laws. (7) Similar laws protect institutions with religious restrictions on medical care. (8)

The scope of conscientious objection in medical practice extends beyond direct performance of controversial treatments. Some healthcare providers also object on complicity grounds to less direct forms of cooperation, such as providing referrals to physicians who do offer these treatments or even providing basic medical information about the objectionable treatments. The complicity objection is grounded in the contention that any participation in, involvement in, or facilitation of a patient's access to these controversial treatments would constitute impermissible moral cooperation in an objectionable act. (9)

A fundamental conflict arises between those who believe that healthcare providers with deeply held conscientious convictions should not be required to provide treatment they consider objectionable and those who believe that physicians have an ethical obligation to prioritize their patients' interests over their own (which may require a physician to provide legal, clinically appropriate medical care that he conscientiously opposes). At its heart, this intractable dispute is about the role of healthcare providers in contemporary society and the ethical obligations of the medical profession. Reasonable parties may ultimately disagree, and this Article reaches no conclusion on this debate.

This Part offers empirical evidence about healthcare providers' perspectives on conscientious refusal, as well as about the impact of such refusals on patients. It focuses specifically on refusals to provide information about controversial treatments and the availability thereof. Regardless of one's perspective on the normative goals of medicine, evidence demonstrates that conscientious refusals to provide care, referrals, or information--and relatedly, patients' lack of knowledge about providers' and institutions' limitations on practice--impact patient care in a variety of tangible ways. Conscientious refusals can not only limit a patient's ability to access legal and medically appropriate healthcare treatments, but can, in more serious cases, cause severe medical complications and adverse health outcomes.

A. PRELIMINARY DEFINITIONS

Before turning to the empirical evidence about the impact of providers' conscientious objections on patients' access to care, it is important to clarify the nature of these controversial procedures, the grounds upon which objecting providers typically raise conscience claims, and the language this Article uses to describe both.

As a preliminary matter, this Article focuses exclusively on conscientious objections to medical treatments that are both (i) legal and (ii) within the standard of care in the context of a given patient condition.

First, all of the controversial procedures mentioned above are legal throughout the United States when performed in appropriate contexts, except physician aid-in-dying, which is legal in certain states only. (10) Indeed, many of these procedures are not merely legally permissible, but actually receive stringent legal protections under constitutional law. In the context of reproductive care, for example, the Supreme Court has held that the Fourteenth Amendment protects a person's right to access contraception and abortion under the care of a licensed physician." Courts carefully scrutinize the legislative restrictions on access to these medical treatments for consistency with constitutional principles.

Second, when referring to treatments such as abortion, sterilization, and palliative sedation as falling "within the standard of care," this Article is relying on the legal definition of the term "standard of care." (12) In American tort law, a physician who breaches the standard of care in medical practice can be found liable for malpractice if such breach causes patient injury. A physician will generally not be found to have breached the standard of care (13) unless his actions fall outside the scope of what could be expected of a reasonably competent physician under similar circumstances. (14) Courts recognize that medicine is an inexact science and that mere disagreement among experts about the best way of treating a particular patient is not evidence of a breach of legal duty. (15) Thus, a physician who provides treatment that is supported by a "respectable minority" of competent physicians will be found to be practicing within the standard of care, (16) even if the treatment he selects is controversial and opposed by some physicians (either on conscientious or medical grounds). In the context of reproductive care, which will be used as the primary illustrative example throughout this Article, there is no question that abortion, (17) sterilization, (18) and contraception (19) which can only be offered by licensed medical providers, fall within the scope of treatments that reasonably competent physicians might offer in some circumstances, and thus fall within the standard of care. (20)

Finally, it is important to recognize that conscientious objections to controversial medical practices are by no means uniform among objecting providers. Some will not offer treatments that violate their deeply held religious beliefs but will nevertheless recognize that such treatments may be medically beneficial to some patients. Others may raise conscientious objections to controversial treatments because of beliefs that such treatments are never medically beneficial to patients and/or are otherwise incompatible with the ethical practice of medicine. Arguments of the second type, grounded in professional ethics and normative judgments about the ethical boundaries of medical practice, may be viewed as both moral and medical in nature. These arguments are therefore distinguishable from purely moral objections, in which the moral claim overrides, rather than influences, medical judgment.

This Article, however, resists drawing this distinction too finely. The fact that a physician's bona fide medical judgment is influenced by his beliefs about what constitutes the ethical practice of medicine does not render that judgment immune from challenges. Indeed, a physician who self-identifies as having a claim of conscience and objects to a specific type of medical treatment that is legal and within the general standard of care is entitled to the benefits of laws protecting conscientious objection, even though his claim can also be interpreted as a medical claim.

Consider, for example, a physician who is unwilling to provide qualitatively futile treatment--that is, treatment that achieves its intended physiological goals, but that the physician believes provides no tangible benefits other than extending the life of a patient with no hope of recovery. If the patient's family requests such treatment and the physician objects, the physician is making both a medical and a moral claim. His claim is surely medical, given that making such a claim requires medical training and the exercise of bona fide medical judgment. However, the claim is moral in that the exercise of his medical judgment is based on an underlying (and contestable) normative belief about what physicians should and should not do as professionals. A physician who considers curing disease to be the primary goal of medicine would not consider futile treatment medically appropriate and would be entitled to decline to provide that treatment. If the patient's family were to bring a malpractice action for the physician's refusal to offer futile care, the physician would surely defend himself by bringing in medical expects to testify that his decision was reasonable. The plaintiffs family, of course, would bring in opposing experts, and it would be up to a jury to decide whether the physician's exercise of medical judgment was within the standard of care. But if this physician instead identified his failure to provide futile care as grounded in a conscientious objection, he would be entitled to rely on any state or federal conscience laws that immunize him from liability in such circumstances. Effectively, in such a case, the moral or conscientious aspect of the physician's claim would trump its medical aspects. In light of this fact, it seems inappropriate for the physician making a moral/medical claim to reap the benefits of conscience protections, while at the same time arguing that his claim should be treated differently than a "purely" moral claim because it is grounded in part in a medical judgment.

B. PROVIDER LIMITATIONS AND PATIENT AWARENESS

Empirical studies demonstrate that a substantial percentage of physicians are unwilling to provide referrals for legal procedures they consider morally objectionable. In a 2011 survey of physicians across specialties, 44% of respondents moderately or strongly disagreed with the following statement: "Physicians have a professional obligation to refer patients for all legal medical services for which the patients are candidates, even if the physician believes that such a referral is immoral." (21) Among physicians who identified religion as "very important" or "the most important" part of their lives, disagreement with the statement was at 52% and 62%, respectively. (22) A 2007 study in the New England Journal of Medicine found that 29% of physician respondents either believe there is no obligation to provide a referral for a patient seeking a legal medical procedure to which the physician objects, or are undecided on the issue. (23) Among physicians with high intrinsic religiosity, this figure rose to 44%. (24)

Even the provision of basic information about controversial medical procedures is objectionable to many physicians. The New England Journal of Medicine study found that 14% of physician respondents are either undecided or believe that a doctor who objects to a procedure on religious or moral grounds is not obligated "to present all possible options to the patient, including information about obtaining the requested procedure" when discussing treatment options with a patient. (25) Among physicians with high intrinsic religiosity, this figure rose to 19%. (26) The authors of the study concluded that if these survey responses translate into clinical practice, "then 14% of patients more than 40 million Americans--may be cared for by physicians who do not believe they are obligated to disclose information about medically available treatments they consider objectionable." (27) In certain contexts, higher figures have been offered. For example, in a 2011 survey of almost 2000 gynecologic oncologists, 45% reported that their personal religious and spiritual beliefs "play[ed] a role in the medical options they offered patients." (28)

Notably, these figures do not include religious objections to information disclosure at the institutional level, which are also common. A 2000 study of hospital policies on emergency contraception for rape victims found that employees in twelve of twenty-seven Catholic hospitals surveyed reported that their institutional policy "prohibits the discussion of emergency contraception with rape victims." (29) Five reported a policy prohibiting discussion of contraception generally. (30)

Refusal to provide information about morally prohibited treatment is arguably justified by the United States Conference of Catholic Bishops' Ethical and Religious Directives for Catholic Health Services, which states in Directive 27 that "[f]ree and informed consent requires that the person or the person's surrogate receive all reasonable information about the essential nature of the proposed treatment and its benefits; its risks, side-effects, consequences, and cost; and any reasonable and morally legitimate alternatives, including no treatment at all." (31) Some read this directive as permitting providers to withhold information about treatments they consider morally objectionable during the informed consent process. (32)

Perhaps most significantly for this Article, many patients are simply unaware of religious limitations on practice at the institutions where they seek care. (33) That is, they enter healthcare facilities without knowing that those facilities have institutional policies preventing providers from offering, or sometimes even discussing, treatments that might be expected in unaffiliated healthcare facilities.

A 2000 public opinion survey, for example, found that almost half of women surveyed said that they would expect to receive "medical services or procedures that are contrary to Catholic religious beliefs" if they went to a Catholic hospital. (34) Troublingly, of the 32% of women surveyed who expected that a Catholic hospital might limit access to care, a surprising number failed to identify the types of treatment that might be limited on the basis of religious teachings. (33) While 62% expected limitations on access to abortion at Catholic hospitals, and 43% expected limited access to birth control, only 6% identified the morning-after pill as a limited service, 3% identified sterilization, and only 1% identified physician aid-in-dying. (36)

Given the substantial portion of American healthcare that is provided at Catholic or Catholic-affiliated healthcare institutions, (37) these figures are worthy of note. A recent New York Times article about hospital mergers concluded that when nonsectarian hospitals merge or otherwise affiliate with Catholic healthcare institutions, "[t]he restrictions [on care] at any given hospital may not be clear." (38) The article quoted an attorney at the National Women's Law Center as saying, "Women simply don't know what they're getting[.]" (39) Indeed, given that both hospital policies and the implementation of such policies vary from institution to institution, such ambiguity is to be expected.

Even outside religiously affiliated healthcare institutions, limitations on the provision of controversial services are often not obvious, even to the providers practicing within those institutions. A 2010 survey of OB/GYNs concluded that "both explicit and implied" institutional restrictions were the primary obstacles to the integration of abortion into medical practice. (40) A surprising number of the study's respondents reported that these practice restrictions were not made clear to them at the time they were hired; many discovered the practice restrictions only after joining the practice. (41) If an OB/GYN choosing to join a healthcare practice is unaware of conscience-based or other limitations on reproductive care within that practice, surely patients are not in any better position to discover this information.

C. CONSEQUENCES FOR PATIENTS

Legal protections for physicians who refuse to provide referral information for controversial care are less well-established than the protections for physicians who refuse to provide controversial care directly. At least one federal law offers protections for providers who are unwilling to provide referrals for abortion, but it does not extend its protections to other controversial procedures. (42) Reva Siegel and Douglas NeJaime report that some federal and state conscience laws extend their protections to physicians whose beliefs prohibit them from providing information about controversial procedures. (43) The language used in conscientious refusal statutes, however, varies quite a bit from state to state, making it difficult to know precisely what kind of behavior is protected. Some statutes permit healthcare providers to refuse to "recommend," "counsel," or "suggest" objectionable procedures--language that could be interpreted to protect those unwilling to provide basic medical information. (44) Only some states explicitly allow physicians to refuse to "advise" (45) or "provide information" about abortions and other controversial procedures. (46) Oregon is the only state that requires objecting providers to inform patients that they will be providing less-than-complete information. (47)

Opponents of broad conscientious objection laws argue that such laws negatively impact a patient's access to legal and desired medical care, and can lead to unwanted consequences and adverse health outcomes. (48) Indeed, studies of physicians practicing in religiously affiliated institutions report that many providers view some hospital policies as conflicting with their medical judgment about the standard of care. (49) Arguably, when a provider fails to inform a patient about the existence of legal and clinically viable treatments that the provider does not offer, the provider limits the patient's access to care in an even more striking fashion than a simple refusal to offer treatment. Not only is the patient unable to access the relevant treatment from the objecting physician, but the patient may not be sufficiently informed to recognize that the treatment may be available elsewhere, thereby delaying access to care in meaningful ways.

A few highly publicized cases have drawn attention to the challenges patients face when seeking treatment from providers or institutions that refuse to provide information about legal but controversial medical procedures. (50) In 2013, Tamesha Means, a pregnant woman whose water broke at eighteen weeks, was sent home twice from Mercy Health Partners in Muskegon, Michigan, without being informed that her pregnancy was not viable and that the best medical option would be to induce labor and terminate the pregnancy. (51) Ms. Means stated, "They never offered me any options. ... They didn't tell me what was happening to my body." (52) One legal commentator expressed confidence that if Ms. Means were to bring a suit against the hospital or treating physicians in connection with her experience, "this would be plain-vanilla medical malpractice." (53) Similar lawsuits have been filed against Catholic hospitals that refuse to provide information about emergency contraception to rape victims. (54)

Delays in accessing care as a result of a provider's or institution's conscientious refusal to provide information or services can cause a range of consequences, from mere inconvenience to more dramatic consequences, such as unwanted pregnancy and serious adverse health outcomes.

For example, in the context of emergency contraceptives, many of which need to be taken within seventy-two hours of unprotected intercourse to be effective, a provider's refusal to offer or prescribe, or (now that such products are available over the counter) a pharmacist's refusal to dispense, may make it impossible for a woman to avoid unintended pregnancy. (55) Likewise, in the abortion context, state laws restricting access to second- and third-trimester abortions mean that time is of the essence when a patient is seeking a provider. A refusing provider, or one who declines to provide relevant information, might be the difference between the woman being able to legally obtain an abortion or not. (56)

Another example arises in the context of concurrent Cesarean section and tubal ligation. When performing a Cesarean section (during a normal pregnancy) on a woman who wishes not to have any more children, physicians may simultaneously perform a tubal ligation, to spare the woman the risks associated with a second surgery at a later date. Catholic hospitals that oppose sterilization on religious grounds, however, will not perform tubal ligation concurrent with Cesarean section. (57). Thus, women who deliver babies via Cesarean section in Catholic hospitals and wish to undergo tubal ligation are subject to increased risks of medical complication associated with a second surgery at a later date and with a different physician. (58)

Finally, for women with miscarriages or life-threatening pregnancies, such as Tamesha Means, an objecting provider, or one who fails to accurately describe the scope of medical options, can sometimes mean the difference between life and death. In numerous empirical studies and media reports, physicians working in Catholic-owned hospitals report that hospital policies on miscarriage management have interfered with their medical judgment in cases where termination of pregnancy or uterine evacuation is considered the medical standard of care. (59) According to a report by the National Women's Law Center, when unstable patients are miscarrying, "immediate uterine evacuation reduces the patient's risk of complications, including blood loss, hemorrhage, infection, and the loss of future fertility. A delay in treatment may subject a woman to unnecessary blood transfusions, risk of infection, hysterectomy or even death." (60) In institutions that do not offer termination or uterine evacuation, these adverse health consequences can arise as a result of delays when women are transferred to other institutions, (61) as well as delays from the performance of medically unnecessary tests performed for the purpose of ensuring that treatment complies with religious doctrine. (62) Indeed, in October 2015, the American Civil

Liberties Union filed suit against Trinity Health Corporation, one of the largest Catholic healthcare systems in the United States, on these grounds. (63) The lawsuit alleges that Trinity violated the Emergency Medical Treatment and Active Labor Act when it refused to terminate the pregnancies of five women whose amniotic sacs had broken prematurely, a condition where "there is virtually no chance that the fetus will survive," and for which termination of pregnancy is considered "the standard of care." (64) While there is some dispute as to whether Catholic hospitals are properly interpreting the Directives in such cases, (65) the validity of the theological reasoning behind the hospitals' decisions is less important than the practical impact of these decisions on patient care.

III. CRAFTING A DISCLOSURE DUTY

From the perspective of patient rights, the ideal outcome in cases of conscientious objection by healthcare providers would be full information about, and access to, all legal medical treatments that fall within the standard of care (as defined in Part II. A), without any delay or inconvenience greater than that experienced by patients whose providers do not have objections to treatment. …

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