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Duty to treat or right to refuse?

Duty to Treat or Right to Refuse?

Although AIDS is novel, one of the moral problem it poses is not: Do physicians and other health care workers have a moral duty to treat HIV patients despite the risks of contagion? This question was thrust into public consciousness in the late 1980s. A world-famous heart surgeon proclaimed that he would not operate on HIV-positive patients; and Dr. Lorraine Day, an orthopedic surgeon in San Francisco, loudly protested in the newspapers and on TV the high risks she faced. [1] The question became real for me when a dinner I was enjoying with Peter, a surgeon, was interrupted by a phone call asking him to operate on a patient with a fractured cheek. Peter asked whether the patient, a transvestite who had been assaulted after a pickup in a bar, would take an HIV test, and was told "no." He then refused to operate and suggested that the patient be sent to a nearby public hospital if no one else would take the case.

I asked Peter what would happen to the patient. He replied that a plastic surgery resident would get some practice that he probably needed. When I asked why the resident should have to take risks that he would not face, Peter said, "Because he can't get out of it and I can." He insisted that surgery of this sort, where bone chips and writing are frequently involved, often produces cuts, and that there is no way to avoid them. He worked in an area with a high incidence of HIV and believed that his cumulative risk of infection was high even if the risk in one operation was not. He said, "Losts of surgeons carry antibodies for hepatitis B. That's a risk we all have taken, but I won't take the chance of bringing AIDS into my bed and killing my wife. Would you?" I confessed that I neither knew what the risks were nor how I would behave. I asked him if he would feel differently about the risks if AIDS were a disease of children; he did not know. In the end, another surgeon in the same hospital took the case.

Did my friend have a moral duty to treat that patient? If so, from what does it derive: a professional code? medical tradition? the importance of avoiding discriminatory behavior? a social obligation to guarantee access to care? Can we guarantee that people receive medical treatment if physicians deny they have, or fail to carry out, a duty to treat?

Professional Disagreements about Duties

Answers to these questions remain controversial among physicians. Peter, for example, was not sure he had a duty to accept patients who put him at personal risk, claiming that he cound refuse to treat for less important reasons, including inability to pay. Nevertheless, he was defensive about his refusal.

Nor is Peter's attitude unusual. Recently, the National Commission on AIDS complained that "a shocking number of physicians are reluctant to take care of people living with HIV infectionand AIDS." Only "10 percent of internal medicine residents have a strong commitment to the care of HIV-infected people and are likely to include them in their post-training practice," whereas "25 to 30 percent have a definite aversion to HIV work and are planning in their professional lives to avoid contact with these patients." The number of dentists who will treat people with HIV infection is "grossly inadequate and unacceptable." [2]

Factors other than fear of contagion contribute to this reluctance to treat. Some physicians and dentists express concern that non-HIV patients will shun their practices if they treat AIDS patients. Others insist they do not know enough about HIV infection and are too busy to learn. This excuse drew rebuke from the National Commission, which insisted that--with more than one million HIV patients across the country--physicians "simply must acquire the expertise." Other providers have antipathies to the groups at highest risk. But, unlike fear of contagion, these other reasons for refusal to treat seem to be expressions of bias or capitulations to it rather than respectable grounds for denying that one has a duty to treat.

State professional organizations and medical boards disagree about a duty to treat. In 1987 the Board of Medical Examiners in New Jersey proclaimed that "a licensee of this Board may not categorically refuse to treat a patient who had AIDS or AIDS related complex, or an HIV positive blood test, when he or she possesses the skill and experience to treat the condition presented." An opposite position was taken by the Arizona Board of Medical Examiners. Medical boards specify the legal duties of physicians; these rulings probably reflect a difference in underlying beliefs about moral duties. James Mann, chairman of the Texas Medical Association's Board of Counselors, defended its decision that there is no moral or professional duty to treat: "We didn't agree that a physician who diagnoses AIDS is mandated to treat the patient. I don't think it can be called discrimination when it's a matter of a guy [sic!] laying his health and career on the line." [3]

Disagreement exists at the national as well as the state level. The 1986 national AMA statement on the issue left a door wide open to refusals to treat, allowing physicians who were "emotionally" unable to care for AIDS patients to refer them to others. In late 1987, the AMA issued a stronger statement closing that door.

A physician may not ethically refuse to treat a patient whose condition is within the physician's current realm of competence solely because the patient is seropositive. The tradition of the American Medical Association, since its organization in 1847, is that: "when an epidemic prevails, a physician must continue his labors without regard to the risk to his own health." ...Physicians should respond to the best of their abilities in cases of emergency where first aid treatment is essential, and physicians should not abandon patients whose care they have undertaken. [4]

Unlike the AMA, but like some other professional surgical organizations, the American Academy of Orthopedic Surgeons (AAOS) has not insisted that surgeons have a specific duty to treat HIV patients, despite affirming in general terms an ethical responsibility to provide care to all patients. In off-the-record conversations with those involved with the AAOS Task Force on AIDS, I was told that the leadership feared adopting a stronger position that much of the membership would not follow.

Nursing codes, not surprisingly, take a strong stand in favor of a duty to treat: "In most instances, it would be considered morally obligatory for a nurse to give care to an AIDS patient. If the nurse is immunosuppressed, however, it could be reasonably argued that the nurse is not morally obligated to care for that patient [and the nurse must then] choose whether or not to go beyond the requirement of duty." [5] The distinction between normal and immunosuppressed nurses is important, as well as the inference that the level of risk to the individual determines whether treatment is within or aboce the call of duty (I return to the point later).

Problems with the AMA Position

If we examine the AMA position, the sources of controversy become apparent. The 1987 statement makes the following argument:

Principle VI of the 1980 Principle of Medical Ethics states that "A physician shall in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate and the environment in which to provide medical services." The Council has always interpreted this Principle as not supporting illegal or invidious discrimination.... Thus, it is the view of the Council that Principle VI does not permit categorical discrimation against a patient solely on his or her seropositivity.

This argument is open to an obvious raply: refusal to treat HIV patients (or those at high risk for HIV) is not invidious discrimination but merely self-protection. Even if the burden of such choices falls most heavily on certain groups, such as gays, who are often the object of individuals discrimination, the intent here is not to discriminate, but to protect oneself. Exactly this line of argument appears in an article titled "My Brother, the Doctor, Is in Danger." [6] Indeed, as Peter argued, if physicians can protect themselves against economic loss by refusing to take Medicaid patients or the uninsured, then why not against risks to health? The AMA statement simply implies, without argument, that categorically refusing to treat HIV-positive patients is invidious discrimination. But surely, intending to avoid risks is district from intending to discriminate.

To save the AMA position, we might flesh out its argument as follows: Refusing to treat HIV-positive patients is discriminatory because physicians have a duty to face some standard level of risk associated with their profession. The risks of HIV infection and its consequences do not exced that level and are comparable to other risks physicians are willing to take. Consequently, appealing to self-protection in the case of patients with high risk for HIV is discriminatory.

Two challenges face this modified AMA position. Even if there is a duty to treat in the face of some level of personal risk, the risks of HIV infection might exceed that level for some or all practioners. Then it would be supererogatory for such physicians to treat HIV patients. To face this challenge, we must consider the evidence about HIV risks to health care workers. The other objection is that physicians might in fact have no duty to treat in the face of any significant levels of personal risk. Before facing these challenges, I want to make a more basic point.

Consent and the Distribution of Risks

The general mechanism for distributing the benefits and burdens of risk-taking is, and should be, consent. Consequently, if physicians have a duty or obligation to take certain risks, it must be the result of their agreeing to do so. This is my provisional hypothesis about the foundations for any duty to treat despite risks of contagion.

The centrality of consent to risk-taking should be obvious to medical providers, who face penalties if they fail to obtain informed consent to risks from patients, even when clear benefits accompany the risks. But the reliance on consent is really quite general. For example, we generally believe that workers may sell their daring in the face of workplace hazards, provided they are informed of the risks and their choices are truly voluntary. [7] Often it is not the level of the risks we take that matters to us, so much as the opportunity to control them through consent: people who do not want a farmer to use a pesticide that imposes minute risks may still smoke, refuse to buckle seatbelts, scuba dive, or live in Washington, D.C.

Consent is crucial where obligations to take risks exist in various occupations or professions. For example, we assume that in choosing their careers, undergoing the training involved, and agreeing to follow the codes and practices regulating their work, firefighters and police have given consent to facing the significant risks they are obliged to take. They are aware in a general way of the kinds of risks they will typically and can contrast those risks with situations that impose exceptional risks, even if they cannot state the risks with statistical precision. Thus firefighters are obliged to face some standard level of elevated risk, higher when the lives of people are at issue than when property preservation is the only issue. But undertaking exceptional risks is still viewed as supererogatory, and the firefighter who truly risks life and limb is rewarded as a hero and not merely a competent worker.

We seem to believe that people in risky occupations are self-selected for their daring. This presupposes that the risks are widely perceived and that people have real alternatives. Moreover, those who stay in risky occupations often surround themselves with a subculture that supports their willingness to take risks. Sometimes the subculture has a "macho" tone, but more generally social support and rewards are given in recognition of the daring involved.

There are strong parallels to medicine. People who enter medical fields clearly had alternatives. There is a general understanding that physicians face an increased risk of contagion from disease (remember Peter's remark about HBV infection among surgeons), an understanding refined during schooling and training. For example, it is common to screen new house staff and nurses in medical centers to determine whether any individuals face special risks of contagion, such as immunisuppression or pregnancy. Those at high risk may then be asked to avoid certain treatment situations, materials, or hospital areas. Similarly, some OSHA regulations aim at protecting "hypersensitive" workers who cannot tolerate the standard level of risk. [8] Protecting immunosuppressed providers is reasonable" "risk management," a measure taken to reduce bad outcomes. But such special protection supports the claim that only standard risks are included in the duty to treat. As the ANA code makes explicit, some nonsocomial risks clearly take us beyond what duty requires.

Despite these parallels, one dissimilarity between medicine and other risky occupations is worth noting. In recent years, no subculture of heroism surrounds health care workers, perhaps because of confidence in antibiotics. During the period from 1850 to 1950, when physicians standardly cared for patients with infectious diseases, their risk-taking was compensated for by the power, self-esteem, and admiration they derived from "pervasive paternalism." Since these supports have eroded, "the first step in making physicians heroes again is unequivocal support, emotional and financial, for any one who seroconverts in the line of duty." [9]

Consent and the Modified AMA Statement

The AMA's 1847 claim, reaffirmed in 1987, is that a physician is expected to treat "without regard to the risk to his own health" (emphasis added). This claim cannot be taken at face value. It implies that physicians have consented, simply be agreeing to become medical professionals, to facing any level of risk, however high, including that of certain death. No one believes that. Indeed, we ask soldiers to volunteer for especially risky missions and treat their willingness to face certain death as heroic and above the call of duty. Similarly, we must believe that there are some limits, however vaguely specified, to the risks physicians have agreed to face. Daniel Fox suggests there is historical precedent for this conclusion in the special contracts societies have negotiated with certain physicians to act as "plague doctors." [10]

Since risk-taking must involved consent, the best way to construe the AMA position is what I will call the modified AMA position. Physicians consented to face some standard level of risks when they agreed to enter the profession and trained for it, and the risks of nosocomial HIV infection are not so high that they require additional consent. Consequently, refusing to treat HIV patients is invidious discrimination. This modified position may need further qualification, depending on information about nosocomial risks. Specifically, further refinement may suggest a middle ground between the extreme positions that characterize this controversy -- the blanket affirmation and blanket denial of a duty to treat.

Low Aggregate Risks of HIV Transmission

Are the facts about the risks to health care workers, including physicians, consistent with the modified AMA position? The combined data from more than half a dozen studies suggest there are generally low risks of HIV transmission to health care workers. James R. Allen, summarizing combined studies of almost 1400 health care workers and 1300 dental personnel, concludes that "the risk of HIV infection even after mucous membrane exposure or parenteral inoculation of infected blood, fluids, or secretions is extremely low--probably less than one per 200 incidents." [11] A Centers for Disease Control summary of 1107 health care workers tested after exposure, mostly to needlesticks, showed 4 HIV positive, for a conversion rate of 0.0041. All of these were needlesticks, one had an HIV-positive sexual partner, three had no risk factors, and two of them were emergency technicians injured during resuscitation attempts by co-workers. [12] This estimated rate of conversion is probably a maximum or we would see a much higher proportion of health care workers who are HIV-positive.

Three important observations can be made about the level and distribution of risk to health care workers. (1) Health care workers seem to be at no greater risk than the public as a whole, since the percentage of health care workers with AIDS matches the percentage of AIDS expected in the population as a whole. (2) Health care workers who have AIDS fall into the same proportion of high-risk groups as the population as a whole. (3) Health care workers with AIDS who fall into the "no-known-risk" category were distributed among all categories of health care workers, irrespective of their contact with blood and body fluids. Surgical specialties were not over-represented; only housekeeping and maintenance workers were more likely not to have an identified risk. [13] A study of military reservists employed in health care showed that the only category of workers with a prevalence of HIV higher than that among reservists who were not health care workers were single white and black males employed as RNs or medical technicians. [14]

Disaggregating the Nosocomial Risks

In general, the risk a particular physician faces will be the result of (1) the risk of seroconverting per incident of exposure (e.g., per needlestick); (2) the frequency of exposure incidents, such as needlesticks; and (3) the proportion of patients who are HIV-positive. Michael D. Hagen and colleagues estimate the frequency of needlesticks at about one in forty cases. [15] Taking high estimates of HIV seroconversion rates and high estimates of HIV prevalence among patients, they still conclude that the "surgeon's risk of HIV infection when operating on an infected patient appears to fall between 1/130,000 and 1/4,500." They are confident that this is a plausible estimate, since there is no evidence of a high rate of HIV infection among surgeons operating in high risk areas. [16]

Ezekiel Emanuel disaggregates the statistics with somewhat different conclusions. Assuming a rate of forty sticks per year (which implies 1600 operations a year), a 1 percent risk of seroconversion per HIV-infected needlestick (which is more than twice what the CDC figures imply), and a patient prevalence of 4.6 percent, Emanuel concludes that emergency department surgeons face a 2 percent annual risk of infection. If 33 percent of Dr. Day's patients are HIV-positive, as she claimed, then she faces a 12 percent per year risk of HIV infection, or 49 percent for five years, a very high level of risk indeed. For comparison, Emanuel claims that medical house staff face an annual risk of death comparable to that of Boston firefighters. Dr. Day's annual risk of death, he concludes, is higher than the risk faced by military personnel in Vietnam. [17]

Emanuel's estimates face a serious problem. They seem much higher than observed rates of HIV infection among health care workers; nor does the distribution of HIV infection among health care workers show a pattern resembling what these estimates imply. Even acknowledging that HIV has a long latency, we would probably have seen some effects on health care workers if nosocomial risks conformed to Emanuel's estimates. Still, these estimates are honest extrapolations, not an attempt to inflame opposition against a duty to treat. Indeed, Emanuel firmly believes in such a duty, basing it on "the concept of medicine as a profession and on the physician's particular professional role" (p. 1686), and he concludes that only excessive risks, like those estimated for Dr. Day, are beyond the call of duty.

Despite this problem, Emanuel's estimates raise questions about the risks a minority of physicians face. Given these questions, it is not unreasonable for some physicians to believe they face risks higher than the standard level to which all physicians presumably consented. Since consent to risks is essential, we should (1) attempt to get better estimates of these risks; (2) do what we can to reduce the exposure of these physicians, both by improving efforts at preventing exposures and by increasing the access of HIV patients to other physicians; and (3) provide conditions under which consent to these special risks can be obtained.

Hepatitis B vs. HIV

We still need a positive characterization of the standard level of risks to which physicians have presumably consented on the modified AMA view. The risks of hepatitis B seem to be a useful reference point: physicians, like my friend Peter, are aware of the risks yet do not refuse to treat those at risk for HVB. If the risks of HIV do not exceed those of HVB, can we infer consent to the former from consent to the latter? In fact, the risk of seroconverting to HIV and then dyinig is lower than (but the same order of magnitude as) the risk of seroconverting to HVB and then dying. (Hepatitis B is more prevalent in the patient population by a factor of ten, and is more highly contagious than HIV by a factor of about forty; though a serious disease, it is less likely to kill than HIV.) [18] Annas concludes that "as long as scientific estimates place the chance of becoming infected with HIV and dying at less than the probability of becoming infected with hepatitis B and dying, there is no objective data to warrant discriminating against an HIV-infected individual." [19] This point seems to support the AMA contention that refusal to treat HIV patients is invidious discrimination.

The quick comparison of the risks of hepatitis B and HIV ignores some relevant differences. These differences count against the claim that consent to HIV is included in consent to HBV. First, people judge the risk to be worse when there is near certainty of death upon infection (as in HIV), even though there is less risk of infection, than they do when there is higher risk of infection but lower risk of death following infection (as in HBV). Second, there is less sexual transmission of HBV to heterosexual partners; thus HVB risks conflict less with obligations to protect family members from harm. Third, there is less stigma attached to having HBV than to having HIV. Fourth, there is a vaccine for HBV infection, which is more than 90 percent effective; [20] the risk of infection followed by death is reduced by a factor of almost twenty for vaccinated health care workers.

In view of these differences, some physicians insist they consented to the risks of hepatitis B but not HIV (Peter claimed this). Still, I do not believe that the differences here are sufficient to show that physicians typically have consented to one kind of risk but not the other. For example, the hepatitis B vaccine is only recently available, and therefore the level of risk to which most practicing physicians presumably consented is the prevaccine level. Similarly, although the certainty of death following HIV may be the factor that impresses some physicians, I believe most simply underestimate the combined probability of dying from nosocomial hepatitis B. The conclusion we are led to is this: there is in general good reason to treat consent to the risks of hepatitis B as tantamount to consent to the risks of HIV. Nonetheless, the differences between these risks are such that we cannot simply treat as disingenuous someone who is impressed by the differences and denies consenting to the risks of HIV. We cannot dismiss all instances of reluctance to treat as examples of reneging on a prior commitment.

Consent and Disaggregated Risks

The evidence about HIV risks for the most part consistent with the modified AMA position, but two qualifications are in order. First, the estimated, but not observed, cumulative risks to some physicians who practice in high-incidence areas exceeds the standard level of risk. Despite the speculative nature of these estimates, it is not unreasonable and not disingenuous for this minority of physicians to insist that additional consent to these risks is necessary. Second, some people perceive the risks of hepatitis B and HIV differently, despite the fact that the combined risk of infection followed by death is similar (sans vaccine). For them, consent to the risks of HBV is not tantamount to consent to the risks of HIV. Since our conclusion that physicians have consented to some general level of risk is based on a complex inference, we should err in cases of reasonable disagreement about the risks in the direction of seeking explicit consent rather than insisting that a duty already obtains. Moreover, since some of these alleged risks are elevated because society has failed to meet its clear obligations to remove insurance and other barriers to access, it would be hypocritical to insist that physicians comply with their contested obligations.

With these qualifications, the AMA position occupies a reasonable middle ground between blanket affirmations and blanket denials of a duty to treat.

Consent as a Constraint on Foundations

There must be consent to the risks involved in a duty to treat. This fact imposes constraints not just on the scope or content of such a duty, as we have seen, but on the kinds of justification--or foundations--we can provide for it. This point might itself seem uncontroversial. After all, professional obligations are acquired obligations, and acquired obligations in general result only from actions or roles one undertakes consensually. (There may be exceptions, such as filial obligations.) [21] Unfortunately, the point has been made controversial. Only be deemphasizing consent to risk can a blanket duty to treat be made immune to claims such as, "I may have consented to some risks on entering the profession, but not to those risks," or, "Maybe earlier practitioners consented to risks of infection, but I entered the profession when such risks were few and I did not consent to them." On the view I have been defending, these denials of consent have to be taken seriously. The defense of a duty to treat is thus cumbersome and inelegant, the justifications burdened by detail. Seeking a cleaner line of defense, proponets of a blanket duty to treat have looked elsewhere for foundations.

A natural place to look is in the requirements of justice. If justice required physicians to treat despite risks, we would have a clean, straightforward defense. But proponents of a duty to treat have been frustrated with the results of the appeal to justice: justice does not under all circumstances imply there is such a duty. Looking elsewhere, some have claimed that the very "concept" of being a medical professional implies a duty to treat despite nosocomial risks. Others try to ground the duty in appeals to what history tells us were at some time the standard virtues or duties of such professionals.

By examining these alternative justifications briefly, I want to show that they either incorporate consent to risk without acknowledging it, or they fail to provide a foundation for a duty to treat. I also want to draw some lessons from these accounts that point to a plausible model of professional obligations in general. Understanding this model will help us see how best to respond to the reluctance of physicians to treat HIV patients.

Justice and Duties to Treat

It is commonly claimed that justice, even when it includes rights to health care, cannot be the basis for a duty to treat. [22] If individuals have a right to health care, there must be a correlative social obligation to guarantee that appropriate health care is provided--but this social obligation does not individuate directly into an obligation of each physician or health care provider to deliver that care. (I have no objection to this point; see chapter six of my Just Health Care.) Rather, society might be able to guarantee the delivery of all necessary care by letting physicians contract individually to deliver whatever care they choose. Such a system of voluntary contracts would involve no general moral duty to treat that is binding on all physicians. Physicians would have specific contractual duties to treat only patients they chose to treat. Proponents of a duty to treat binding all physicians then turn elsewhere, for example to claims about what it is to be a virtuous physician, in their search for foundations.

The argument fails, however, to show that we must seek alternative foundations for a duty to treat. To see why, observe that the duty of physicians to treat anyone they are competent to treat, despite the nosocomial risks, divides into two independent components. First, physicians might have a duty to treat anyone they are competent to treat, provided there are no nosocomial risks. That is, there is no choice about whom to treat, except that self-protection overrides the duty. Second, physicians might have a duty to disregard (at least some) nosocomial risks in deciding whom to treat, but have no general duty to treat any patient they are competent to treat. That is, they can select patients on any basis except nosocomial risks.

Justice may have a bearing on each of these distinct duties to treat. Under some conditions, it may be possible to assure access to care without establishing a binding duty to treat of either kind on all physicians. Under other conditions, however, justice may require us to impose one or both of these duties to treat on physicians, for example, as a condition of licensing, or as a condition on eligibility for third--party reimbursements, because that is the only way, or the best way, to guarantee adequate and equitable access to care. Whether justice requires us to impose either or both duties to treat depends on the design of the health care system, the willingness of physicians to accept patients of all kinds, and the kinds of needs that have to be met--not merely on the fact that physicians are professionals. Moreover, the imposition of such duties is compatible with the requirement of consent. In agreeing to pursue a career in medicine when a duty to treat is a condition of licensing, physicians would be consenting to accept certain obligations and the risks that they entail. Although such conditions clearly restrict the options open to individuals--one cannot be a physician without agreeing to the conditions--imposing them need not violate any basic liberties of individuals and thus involves no inconsistency within the requirements of justice itself. [23]

We can now see why the argument fails to show that justice could not provide foundations for a duty to treat. The argument assumes that a bona fide duty to treat applies to all physicians simply because they are physicians. In deciding to impose either one of the duties to treat that we distinguished, however, justice takes into consideration complex facts about access to care, and so it cannot yield a duty to treat that applies to all physicians under all circumstances. By assuming that moral duties binding professionals are transcendent, that is, independent of facts about the delivery system, and thus binding in all medical systems, the argument begs the question against a justice-based account. Justice can provide us with foundations for perfectly adequate duties to treat, albeit not for transcendent ones, if there are any.

Arguments from the Concept of

a Virtuous Physician

In his excellent discussion, Arras distinguishes two "virtue ethic" accounts of the duty to treat, one conceptual and the other historical. [24] Zuger and Miles typify the conceptual approach and trace their view to Scribonius, a first century Roman physican: "To be in a profession implied a commitment to a certain end (professio), and thus an obligation to perform certain functions or duties (officia) necessary to attain that end. In the case of medicine, the professio is healing, the officia is treatment of sick persons presenting for care. Professional virtues are the attributes of character needed to honor the commitment to healing." Because physicians have voluntarily committed themselves to the end of healing, they are obliged to undertake the duty of caring for HIV-infected patients. Physicians who refuse to treat "are falling short of an excellence in practice implicit in their professional commitment." [25] (I here ignore the general objection that failing to live up to an ideal of virtuous behavior may not itself be a basis for public sanction.)

This conceptual approach errs because it assumes that the end to which physicians have committed themselves is the comprehensive one of healing, period. That is not an achievable end, since no one can treat everyone. An achievable goal would be to treat the patients one chooses to take on, or the patients assigned to one in an HMO--which is how the AMA Code, Principle VI, for example, construes the commitment. Physicians have a right to choose whom to treat, provided no morally objectionable or illegal discrimination is involved. From the Scribonian concept of a healer that Zuger and Miles describe, we cannot infer just whom healers must treat.

Furthermore, properly understood, the conceptual approach, far from showing that we need not worry about consent to risks, really contends that physicians have already consented to all nosocomial risks because they have adopted the unrestricted end of healing, and that end logically commits them to facing all nosocomial risks. But there is no such conceptual link here. It simply does not follow that if I have a goal of healing (some) people, then I have that goal regardless of the dangers that arise in carrying it out. From a reasonably circumscribed goal of healing, nothing follows about the levels of risk one is willing to take to achieve that goal.

In discussing the modified AMA view, we concluded that by consenting to become physicians, people accepted some standard level of risks and a duty to treat in the face of them. Physicians learn to distinguish standard risks from exceptional risks through medical education, clinical training, and observation of the role models who surround them in various institutions. Nothing about the risks or their consent to them is contained in the concept of a physician.

Historical Accounts of Virtue-based Duties

For reasons similar to mine, Arras rejects the conceptual approach to deriving virtues. Instead, he suggests that we try abstracting from the historical record a pattern of virtuous physician to which physicians appear to have been committed. At least in the last century or two, with foreshadowings even before that, he concludes, professional organizations and society as a whole have expected physicians to face significant risks of contagion or infection in epidemics. Virtuous physicians would feel an obligation to treat even at risk to themselves. [26]

Several problems face the historical approach, most of which Arras acknowledges. First, the historical record is spotty. As Fox notes, physicians in many epidemics have hardly been the paradigms of the virtues Arras extols, and Fox concludes, as I noted earlier, that voluntary arrangements (usually with some form of special compensation) have been traditional solutions to the problem of excessive risk. [27] Second, the fact that virtuous physicians behaved one particularly way under conditions existing long ago tells us little about manifestations of virtue today. Many things about medical practice have changed: our understanding of disease, the product we deliver, the institutional framework through which it is delivered. Given those facts, the burden of proof is on those who would claim that the virtues remain unchanged.

Acknowledging that the virtues depend on context and are not immutable, Arras suggests that ongoing negotiation between the profession and society is responsible for the emergence of a historically determined model of the virtuous physician. This means that virtues are "fragile" (Arras's term). We--society and the profession--renegotiate what we want physicians to exhibit as conditions change. Therefore, obligations that derive from past virtues are binding now only if we still agree to those virtues. If contemporary physicians or their professional organizations insist that they have not consented to the risks past physicians accepted, renegotiation is already under way.

By acknowledging the fragility of virtue, we admit the duty to treat ultimately rests on consent and is not, after all, transcendent. Despite being rooted historically, the ideal of a good physician changes with changing conditions in medicine and the health system. With or without negotiation and with or without change, the historical version of virtue theory only sets the stage for consensual undertaking. It makes explicit the understanding of the virtues that people entering the profession incorporate through their education, training, and emulation of role models. But this is a consensual undertaking, and thus the picture of how the virtues of the good physician are articulated and become internalized is consistent with my central point: consent to risk acts as a constraint on any account of the foundations for a duty to treat. Dissecting the virtue-ethic account, we find consent at its core. We learn an important lesson from the virtue theorist's motive in deemphasizing consent, however. It is not, after all, simply up to the individual entering a profession to tailor-make a contract that suits her wishes. The shape of the professional obligations to] which an individual consents is determined over time through negotiation with society. The negotiation is complex because at the heart of it is a complex problem: what departures from the requirements of common morality should society allow or require professionals to make? Exceptions are desirable from society's point of view. [28] For example, lawyers must keep the confidence of their clients and plead their defense even when they believe the clients are guilty. Such behavior might constitute obstruction of justice if others did it, but it leads to greater legitimacy of trial outcomes. Similarly, physicians must act as advocates of their patients and respect their confidences even when such behavior by others would not be morally acceptable. Allowing professionals to live by a special morality leads to better treatments.

This complex structure of morally required and permissible professional behaviors is not up for renegotiation by each individual. On entering the profession, the individual adopts the whole package, which has the wisdom (and biases) of a tradition behind it. One cannot omit the duty to treat, for example, and accept the rest. I believe it is this fact that motivates the virtue theorist to attack contractual models of professional duties. By focusing on the risk-taking involved in the duty to treat, we are forcefully reminded that we cannot drop consent out of the account.

Some Points of Convergence

Several features of a more general view of physician obligations emerge from this discussion of alternative foundations for a duty to treat. These points of convergence give us some guidance in responding to the reluctance of physicians to treat HIV patients.

First, virtue theorists like Arras, playing down the idea of an individual contract, remind us that individuals cannot custom tailor the obligations they undertake on entering a profession. Nevertheless, if that package includes a duty to treat, individuals must consent to some standard level of risks that limits the duty. These points are compatible.

Second, justice constrains the negotiations between society and the profession and limits what physicians are permitted and required to do. For example, the liberty to select patients, which the AMA insistently defends, must nevertheless be exercised in ways that are not discriminatory. Moreover, justice may require imposing some special obligations on physicians. If access to care cannot be assured without imposing restrictions on physician autonomy to choose their patients, then that autonomy may be restricted. For example, as a condition of licensure or eligibility for third-party reimbursements, physicians might be required to treat patients regardless of their type of insurance or despite some level of nosocomial risks. Consent is involved here too: physicians accept these constraints when they apply for their licenses or seek third-party payments, knowing that these conditions obtain. The virtues a "good" physician exhibits can thus be shaped by what society believes it has social obligations to guarantee.

Third, society may want virtues in its physicians that go beyond what justice requires. Society may want physicians to be advocates for their patients and to put their patient's interests before their own in certain ways, believing that physicians guided by an ethic of agency will deliver better care and will better respect their patients. For example, we may want physicians to make "pure" clinical judgments, untainted by calculation of the physician's interests or views about the social worth of the patient. We may want physicians to put their patient's interests before their own by treating despite some level of nosocomial risks. So even if justice did not require our imposing a duty to treat despite nosocomial risks, we might have good social reasons for wanting physicians to undertake it. These obligations, like requirements of justice, are sensitive to facts about the design of health care systems and are thus not fully transcendent either.

These three features combine to yield the following picture of professional obligations: the socially negotiated ideal of the good physician is constrained by, but not limited to, what justice requires. It thus stands as a relatively fixed conception from the point of view of any individual. The individual entering a profession must consent to adopt this conception, but cannot custom tailor consent, picking and choosing among obligations. Although becoming a doctor means accepting this set of obligations, the ideal is not immutable and is renegotiated as conditions in and outside medicine change.

Such a model of professional obligations still leaves room for controversy of the kind that surrounds the duty to treat HIV patients. There can be disagreement both about the level of standard risks covered by a duty to treat and about whether the nosocomial risks of HIV exceed that level. Where evidence is complex, reasonable people may differ. The ground is also fertile for unreasonable biases and fears to produce dogmatic stands. On the other hand, this model suggests four types of response to the reluctance of physicians to treat HIV patients: reaffirming a duty to treat, respecting the limits of the duty, reacting to efforts to renegotiate professional obligations, and assuring equitable access to care.

Reaffirming a Duty to Treat

We have obligations to take certain risks only if we have consented to adopt those obligations and face those risks. Contemporary physicians, whether they entered the profession during Pax antibiotica or earlier, pre- or post-HIV, understood that treating patients carries some moderate risks of nosocomial infection, such as hepatitis B. All physicians knew of the possibility of antibiotic-resistant strains of infection, and even of the possible emergence of new or previously undiagnosed diseases. They knew that standard practice involved physicians' treating patients within their competence despite this moderate level of risk. In their training, these physicians observed cases in which risks exceeding the standard level are present. The special protections offered immunocompromised or pregnant health care workers, for example, suggest that individuals are not obliged to take risks that exceed some moderate standard. Given all these things they knew and accepted, I conclude that contemporary physicians accepted a duty not to refuse treatment for HIV patients, unless the cumulative risks of such treatment exceed the standard level of risk that limits the duty to treat. As we saw, extrapolative estimates (not observations) suggest that nosocomial risks of HIV infection exceed that standard level only for a small number of practitioners in certain high-incidence areas.

Reaffirming this duty to treat involves several kinds of action. It involves education, both about the actual nosocomial risks of HIV transmission and about the reasons for claiming that physicians have accepted a duty to treat in the face of some modest level or risks. Clear and honest discussion of the nosocomial risks is essential, because some physicians are heavily influenced by anecdotal evidence--often difficult to trace. Fear is sometimes compounded by bias against those in high-risk groups, and by a belief that the government agencies responsible for monitoring data on these risks are politically constrained to underestimate the risks. The result is an educational process slow and uneven in its effects: many physicians will feel the risks they actually face exceed their duty to treat.

The educational effort must also be clear about the reasons for asserting that physicians have this duty. In confuses the issue to claim that physicians today are bound by this duty because past physicians were, or to say that physicians have such a duty because "virtuous" physicians have always affirmed it. Nor do claims that "the concept of a healer implies it" help. The effort must rather be to show physicians that they already have adopted the duty, though it is a duty limited to some reasonable level of risks.

Reaffirming the duty involves moral pressure from fellow professionals and from professional organizations, though this must be exerted with sensitivity. Moral pressure can influence people, but not if it appears to be self-righteous exhortation by those who actually face few or no risks. The duty to treat is sensitive to actual levels of risks; exaggerated affirmations of a duty to treat regardless of risk, as in the AMA statement, thend to backfire.

A difficult issue facing professional organizations is what recourse they offer those HIV patients who feel physicians have excluded them from their practices, or to physicians who feel certain colleagues are unjustifiably reluctant to treat. Another difficult but equally pressing issue is raised by the importance of role models in medical education. House staff often complain that they bear the burden of treating HIV patients and that some physicians are notably difficult to track down when referrals for HIV patients are involved. (Remember Peter's remark, "They can't get out of it, but I can.") If we tolerate a double standard, it will eventually provide a basis for new practitioners to say that they never really undertook such a duty because it was never really part of the package most physicians live by. Clear policy in teaching centers can help. Unfortunately, many teaching centers refrain from adopting explicit policies affirming a duty to treat, and some that do still do not enforce them in an even-handed way.

Respecting the Limits of a Duty to Treat

The duty to treat despite some standard level of nosocomial risks is a limited duty. If risks exceed the standard level--however roughly understood--then we have a case "beyond the call of duty." The difficulty we face is that we have only speculative, extrapolated estimates of the cumulative nosocomial risks facing the minority of practitioners who practice in high-incidence areas and who perform procedures that involve significant exposures. The softness of these estimates leaves room for disagreement. The consent model calls for erring on the side of caution and giving ample opportunity for individuals to provide more specific forms of consent to these risks. For example, hospitals in high-incidence areas should have explicit policies affirming a duty to treat. Agreement to work under these conditions would amount to the special consent needed, but, as noted earlier, the policy must be implemented in an even-handed way for all personnel, not just for those with the least power. It also means that society has an obligation to reduce the concentration of these risks on a small number of practitioners by increasing access to care.

Respecting the limits to a duty to treat means that we must appeal to the special commitment and courage of those who are willing to face higher risks or to act under conditions where considerable uncertainty obtains. For example, we sometimes do not really know what the risks of certain procedures are, such as unprotected mouth-to-mouth resuscitation of someone at high risk for HIV in emergency situations, especially where exposure to blood is involved as well. Nurses and other health care workers have often attempted resuscitation in these situations, believing certain death for their patient outweighed uncertain risks to themselves. But the duty to treat cannot be presumed to cover such situations. [29] Oddly, we do not treat such acts as acts of heroism, as we do in other rescue situations.

Renegotiating Professional Obligations

The persistent denials of a duty to treat by some physicians and professional organizations are most charitably viewed as an attempt to renegotiate the duty to treat recognized by others. Society has created the conditions under which such renegotiation does not seem extraordinary. By offering physicians direct economic incentives to deny treatment to (or to overtreat) their patients, for example, society undermines physicians' belief that they are acting as advocates for their patients. Similarly, professional organizations tolerate many conflicts that arise between physicians' economic interests and the well-being of their patients, thus eroding the ethic of agency. In this climate, it makes perfect sense to many physicians to deny a duty to treat in the face of nosocomial risks.

Virtue is "fragile," as Arras noted. To preserve the duty to treat we must act to preserve a more encompassing patient-centered ethic, and we can do that only if we preserve--or establish--institutional arrangements that sustain such commitments. It is possible to design a health care system that assures access to all and allocates health care resources without trying to convert physicians into gatekeepers motivated by their own economic interests. Unless we demonstrate a commitment to such goals, we will not be able to resist those who would renegotiate the duty to treat.

Assure Access to Care

Justice requires that adequate access to treatment be available for HIV patients. As many have noted, one way to reduce the concentration of nosocomial risks on those physicians and health care workers practicing in high-incidence areas is to improve access to care, eliminating insurance and other barriers to access. If it requires a universal, compulsory health insurance scheme to eliminate insurance barriers, then HIV simply points us toward a measure already indicated by other problems of access and coverage in the health care system.

Insurance barriers are not the only barriers, however. We lack adequate facilities and personnel in inner-city and rural areas. Addressing these problems of access, which requires new programs and incentives, will do far more to improve access than exhorting physicians to be more willing to treat. Until society fulfils its obligation to treat, focusing primarily on the reluctance of physicians to treat is not only ineffective but hypocritical.

If society demonstrates a commitment to treating HIV patients, it will be easier to address problems that arise from physicians' reluctance to treat. Educational and moral appeals will be more credible. Once we eliminate financial and geographical barriers to access, we can take stronger steps against physician reluctance if it persists, for example, by linking commitments to treat to working conditions in hospitals, health maintenance organizations, and other reimbursement schemes. If necessary, we could require physicians to accept such patients as a condition of eligibility for reimbursement or licensing, and we could do so without violating any basic liberties of providers. But none of these steps may be necessary, and all would be easier to justify, if other measures to improve access are taken first.

In short, we can best reaffirm that physicians have a duty to treat despite nosocomial risks if we show our societal commitment to assure access to care in all feasible ways.

Acknowledgments

Research for this paper was supported by the National Endowment for the Humanities (RH20917) and the National Library of Medicine (IR01LM05005). I appreciate critical comments from John Arras, Dan Brock, Sherwood Gorbach, Michael Grodin, Klem Meyer, James Noble, Stephen Pauker, Constance Putnam, and Dan Wikler.

References

[1] Ellen Goodman, "For Doctors, an AIDS Dilemma That's Spreading with the Disease," Boston Globe, 25 February 1988, p. 21.

[2] National Commission on Acquired Immune Deficiency Syndrome, Report Number Three, "Personnel and Workforce," Washington, D.C., 1990, pp. 1-13.

[3] George J. Annas, "Legal Risks and Responsibilities of Physicians in the AIDS Epidemic," Hastings Center Report 18, Special Supplement (1988): 26-32.

[4] American Medical Association, Council on Ethical and Judicial Affairs, "Ethical Issues Involved in the Growing AIDS Crisis," December 1987, cited in Benjamin Freedman, "Health Professions, Codes, and the Right to Refuse to Treat HIV-Infectious Patients," Hastings Center Report 18, Special Supplement (1988): 20-25.

[5] American Nurses' Association Committee on Ethics, "Statements Regarding Risk v. Responsibility in Providing Nursing Care," (1986), cited in Freedman, "Health Professions, Codes and the Right to Refuse to Treat."

[6] M. Charen, "My Brother, the Doctor, Is in Danger," New York Doctor 2, no. 7 (1989): 17.

[7] Norman Daniels, Just Health Care (New York: Cambridge University Press, 1985), chap. 7.

[8] Daniels, Just Health Care, chap. 8.

[9] W. V. Flegenheimer et al., "A Model for Facilitating Physician's Acceptance of Risk When Treating Patients with AIDS," Abstract, 5th International Conference on AIDS (1989), p. 960.

[10] Daniel M. Fox, "The Politics of Physicians' Responsibility in Epidemics: A Note on History," Hastings Center Report 18 Special Supplement (1988): 5-10.

[11] James R. Allen, "Health Care Workers and the Risk of HIV Transmission," Hastings Center Report 18, Special Supplement (1988): 2-5.

[12] Centers for Disease Control, Morbidity and Mortality Weekly Report 38, 3-6 (1989): 5-6, B. J. Fahey et al., "HIV-1 Infection after Occupational Exposure," Abstract, 5th International Conference on AIDS (1989), p. 725; R. Marcus and CDC Cooperative Needlestick Surveillance Group, "Surveillance of Health Care Workers Exposed to Blood from Patients Infected with Human Immunodeficiency Virus," NEJM 319, no. 17 (1988):1118-27; R. Marcus et al., "HIV-1 Infection after Single Blood Exposure," Abstract, 5th International Conference on AIDS (1988), p. 63.

[13] Allen, "Health Care Workers and the Risk of HIV Transmission," p. 3.

[14] D. Cowan et al., "HIV Prevalence in Military Reservists Employed in Health Care," Abstract, 5th International Conference on AIDS (1988), p. 63.

[15] M. D. Hagen, K. B. Meyer, and S. G. Pauker, "Routine Preoperative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient?" JAMA 259 (1988): 1357-59; J. R. Smith, and J. M. Grant, "Gloves Punctured in 107/200 Lower Segment Caesarian Sections," Abstract, 5th International Conference on AIDS (1989), p. 167; G. P. Wormser et al., "Estimated Risk of HIV Infection among New York City Area Surgeons," Abstract, 5th International Conference on AIDS (1989), p. 796; A. Panlilio et al., "Blood Exposures During Surgical Procedures," Abstract, 5th International Conference on AIDS (1989), p. 148.

[16] J. Perrone, "Have We Underestimated the Risk?" American Medical News, 15 December 1989, p. 25.

[17] Ezekiel Emanuel, "Do Physicians Have an Obligation to Treat Patients with AIDS?" NEJM 318, no. 25 (1988): 1686-90.

[18] Centers for Disease Control, Morbidity and Mortality Weekly Report 38, S-6 (1989): 5-6.

[19] Annas, "Legal Risks and Responsibilities."

[20] Centers for Disease Control, Morbidity and Mortality Weekly Report 38, S-6 (1989): 5-6.

[21] Norman Daniels, Am I My Parents' Keeper? An Essay on Justice Between the Young and the Old (New York: Oxford University Press, 1988), chapters 2, 7.

[22] Abigail Zuger, Stephen M. Miles, "Physicians, AIDS, and Occupational Risk," JAMA 258, no. 14 (1987): 1924-28; John Arras, "The Fragile Web of Responsibility: AIDS and the Duty to Treat," Hastings Center Report 18, Special Supplement (1988): 10-20; Emanuel, "Do Physicians Have an Obligation to Treat?"

[23] Daniels, Just Health Care, chap. 6.

[24] Arras, "The Fragile Web of Responsibility," p. 13.

[25] Zuger and Miles, "Physicians, AIDS, and Occupational Risk," p. 1927.

[26] Arras, "The Fragile Web of Responsibility," p. 14.

[27] Fox, "The Politics of Physicians' Responsibility," p. 7.

[28] Benjamin Freedman, "A Meta-Ethics for Professional Morality," Ethics 89, no. 1 (1978): 1-19.

[29] Ruth Macklin, "HIV Infection and Mouth-to-Mouth Resuscitation," unpublished ms., 1990.

Norman Daniels is professor of philosophy, Tufts University, Medford, Mass.
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Title Annotation:physician treatment of HIV-positive patients
Author:Daniels, Norman
Publication:The Hastings Center Report
Date:Mar 1, 1991
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