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01/20/2018

45 Administration Provides New HCP Protections|Permits HCPs to Discriminate

by Lori Bruce, MA

News broke this week that the U.S. Department of Health and Human Services is creating a new “Conscience and Religious Freedom Division” (CRFD) in the Office for Civil Rights. This new division will support healthcare workers who refuse to treat patients based on moral or religious convictions: “OCR enforces laws and regulations that protect the free exercise of religion and prohibit discrimination in HHS-funded or conducted programs and activities.” U.S. law defines the exercise of religion as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

Patients belonging to LGBTQ populations as well as patients seeking reproductive health services (abortions, birth control, and vasectomies) or assisted suicide (where legal) now face uncertain care: “OCR enforces laws and regulations that protect conscience and prohibit coercion on such issues as abortion and assisted suicide (among others) in HHS-funded or conducted programs and activities.”   From a cursory review of their new website, the limits of CRFD are unclear.  Clinicians will be allowed to “opt out” of care that’s morally offensive to them (such as abortion and sterilization).  There is no mention of a requirement to provide another clinician for such medical treatment. Given various vague statements on the website, clinicians might also be allowed to opt out of any care for a patient whose lifestyle is violates their morality (such as when a transgender person needs help for a broken arm, or aiding a hemorrhaging woman suffering from complications of an abortion, or refusing to provide pediatric care to a child of a same-sex couple).

Any health care provider can file a complaint against an institution (i.e. “covered entity”) that violates their or someone else’s religious freedom: “If you believe that a covered entity discriminated against you (or someone else) on the basis of conscience or religious freedom, coerced you to violate your conscience or religious beliefs, or burdened your free exercise of religion, you may file a complaint with the Office for Civil Rights (OCR).” What is not detailed is what happens to such complaints: Is there an investigation? Would an entity found to violate religious freedom be shut down? Fined? Lose funding? The wording does not limit filing complaints to health care providers. Thus, a patient could technically file a complaint against their HCP or their hospital.  In 2017, 34 complaints were registered with DHHS while there were 10 filed under the Obama Administration.

Shameful acts in our nation’s recent medical history already include a transgender patient who was in dire need of medical care but was refused an ambulance because the paramedics didn’t agree with the patient’s lifestyle. That patient died due to lack of treatment.  In 2012, a doctor “couldn’t bring himself” to disclose a cancer diagnosis to another transgender patient. Later, an oncologist was “hostile and refused to advise him on treatments.” Let that sink in: U.S. citizens lose their lives, or suffer needlessly, because their mere existence is considered offensive. The CRFD may only increase such cases, whilst creating tension in the medical setting as vulnerable patients fear rejection, hospitals fear reporting for violating ill-defined religious freedom, and healthcare workers anticipate tensions from coworkers.

Members of the bioethics community need to respond to the creation of the CRFD because it is the first time in modern times that federal regulations not only protect, but mandate allowing health care providers to discriminate against patients.

First, we should reflect on the ASBH Code of Ethics & Professional Responsibilities for Healthcare Ethics Consultants which reflects on our obligation to “promote just healthcare.” Our work must not “reinforce injustice.” We are a voice for marginalized patients, and in some cases, we may be their last line of defense. We need to find a way to uphold our commitment to fair treatment, especially in the face of current politics.

Second, consider revising institutional policies to both protect marginalized patients from potential adverse outcomes, and to ensure clinicians feel supported if they feel they need to exercise a religious exemption.  There are certainly ways of supporting our clinicians’ adherence to their moral compass while continuing to provide care to all.   This might be time to revisit the terms of your institution’s opt-out clause. Find ways to offer the religious “opt out” policy so that another clinician will readily be available for the patient. Consider whether your policy allows a clinician to adhere to their moral code (such as not offering abortions) or whether it perpetuates stigma towards a minority group (such as refusing to treat a broken bone of an LGBTQ patient).  Consider how you will respond if no one else is available: Should the priority be valuing the HCP’s objection or the patient’s life? There is a key ethical distinction between these cases, and any institutional policy should distinguish accordingly. Also, offer educational sessions so all hospital workers understand what the creation of CRFD means, and how they may respond to vulnerable patients.

Third, we ought to find ways of voicing our support of marginalized communities.  Is your institution listed on the Human Rights Campaign’s Healthcare Equality Index (HEI)? Is your staff up-to-date with their training on how to provide sensitive treatment, in line with the HEI?  Do you have posters in your hallways and ERs that voice your support for treating all people, regardless of orientation, gender identity, or medical need?  Does your institution have ties with the community so that informed representatives can provide insight on your policies? If not, consider a model like Yale’s Community Bioethics Forum which partners directly with community members to gain community insight on specific policies.  Let us all think about how we can reach out to our local marginalized populations to let them know they are valued in our eyes, and that we support and affirm their rights to be treated with the same level of respect and care as all other patients.

Fourth, make yourself known to your local, state, and federal policy makers. Bioethicists are unique in our approach to examining complex issues and questioning assumptions, so offer to be involved as a sounding board or on a committee.  While we as a field may shy away from politics, there are ways of shining light and opening eyes without being combative or “political.”

Finally, be sure to discuss this issue in the classroom. Some students will welcome to this development and others may be appalled. Either way, it is essential that students understand what this means for their practice as well as for the patient’s care.

In closing, these times will continue to challenge our core tenet of respect for persons. Although bioethics has a history of not taking “activist” positions, we can all agree that we owe our patients compassionate care as well as respect toward diverse beliefs. Even if our profession will not weigh in on this issue, as individuals we have an ethical duty to weigh in and to let our elected representatives and institutional officials know.

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