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Health professions, codes, and the right to refuse to treat HIV-infectious patients.

Health Professions, Codes, and the Right to Refuse to Treat HIV-Infectious Patients

The phenomenon of AIDS has not raised new ethical issues. It has, however, given a new slant and poignancy to many familiar issues, such as confidentiality, triage, and the right to refuse treatment. It has, as well, revived some issues that had lain dormant throughout recent medical experience: in particular, whether health professionals are obligated to subject themselves to the risks of treating those with communicable disease. (*1)

It is worth emphasizing that this question may well be a temporary artifact of changing perception. Some degree of risk to health professionals in the conduct of their work (for example, exposure to hepatitis) has always been present as a background datum. The background danger of old familiar risks may remain greater than the new risk introduced by HIV. But perception, rather than reality, controls the generation and resolution of ethical issues, and the perception is that now, because of the new HIV factor, health care is potentially a risky occupation.

In canvassing the reaction of professional associations to this newly recurring question, the executive director of an association of laboratory technicians gave me this informal but not unusual response: "Dealing with this is part of the job. You take the job, you take the good with the bad." If, in five years, the AIDS problem is not under control, this response will be entirely apt, as applied, for example, to new blood technicians. Then, occupational exposure to HIV infection will have been subsumed within the background of risks and normal expectations of those entering and remaining within the profession. At the current point of transition, however, this answer is not fully responsive to the concerns of currently licensed professionals. HIV exposure was not part of the expected deal they had cut in entering a health care profession.

We have then a renewed--and probably brief--opportunity to discuss the substantive question of ethics and the occupational risk of health care workers. We have also the opportunity to reopen a procedural question: the relationship between morality and professional associations of health care workers, as expressed in codes of ethics and other statements of professional moral obligation.

The examination of these professional materials has recently become the exception rather than the rule. As Robert Veatch put it, in typically vigorous fashion:

The most important event in medical ethics in the past fifteen years has probably been the challenging of the assumption that the codes of organized medical professionals are the definitive summary of ethical norms governing medicine. When the Hastings Center Report began publishing it was widely assumed that, if one wanted to know whether a medical practice was ethical, one would consult the Hippocratic Oath or the principles of the American Medical Association. Now that assumption is rejected by the courts, by critical commentators, and even by many medical professionals. [1]

A proper rejection of the definitive status of professional materials does not imply, however, that they are of no interest or use. On a descriptive level, they may represent an expression of the profession's own conception of the ethical obligations of its members, which may be useful in creating realistic public expectations of professional conduct. Within the profession, the broad ethical principles contained in codes are occasionally of persuasive value in evaluating and amending conduct. Codes and ethical statements may, depending upon their provenance and context, be of prescriptive value as well. An ethical statement may be taken as a solemn means of self-binding on the part of professionals, a public form of promise or commitment to abide by certain norms.

Changes in the bioethical climate of the last fifteen years have affected professional associations as well, and this has been reflected in their increasing attention to codes and statements concerning ethics. Different persons will see the ethical materials produced in this ferment of activity in different ways; the insight they will gain will vary according to the tools brought to bear. The historian will see them as products of a time, and as adhering to (or, boldly departing from) earlier practice. The political scientist will see them as attempts of the professions--apt or inept--to secure and expand power. The activist will see them as dialogue in a drama, with heroes, and villains, and fortuitous reversals at the last minute. As a philosopher, I attempt to understand codes at face value, as statements of ethical obligations. Such statements may fairly be judged by the familiar philosophic criteria of comprehensiveness, clarity, and consistency.

Nursing

The statement issued by the Committee on Ethics of the American Nurses' Association dealing with the general issue of professional responsibility and care for patients with infectious disease has specific application to AIDS. [2] The sacrificial historical tradition of nursing is posited as an ideal. Sacrifice is, however, supererogatory; the ANA goes on to ask the crucial question of whether a nurse is obliged to undergo some degree of risk short of that ideal:

Nursing, as nursing, creates a special relationship between nurse and patient, with special duties for the nurse. The nurse is not a "stranger" and thus is not at liberty to walk away from those in need of nursing assistance.

The ANA's Committee on Ethics therefore delineates four criteria that together establish the obligation to care for patients. In essence, they posit such an obligation whenever the value of nursing care "outweighs" any harm the nurse might "incur and does not present more than minimal risk to the health care provider." The Committee finally draws the implication for our case: "[I]n 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...." In such a case, "the individual nurse must...choose whether or not to go beyond the requirement of duty."

No definition of "minimal risk" is provided, other than the ostensive specification that the risks ordinarily associated with caring for AIDS patients fall below that threshold. "Minimal risk" as a term is nonetheless familiar through its presence in regulation of research in the United States, where it is defined as the level of risk ordinarily encountered in daily life. Its use in this context is therefore puzzling. What is there in common between the research context use of "minimal risk" (whether serving as a benchmark for experimentation on children or as allowing expedited review) and this new context of occupational risk? When the phrase appears in research, "minimal risk" broadly represents the highest level of risk that can be inflicted; as used by the ANA, it represents the lowest level of risk that may be demanded of nurses. The usages seem mismatched.

A second puzzle: Does the ANA mean to freeze as the normative minimal risk standard that level of risk ordinarily encountered by an average person, or by an average nurse; and if the latter, is that the average level of risk as understood as of November 13, 1986 (the date the statement was issued), or as understood as of the day when the question is asked? The question is by no means facetious: As data on the occupational risk of HIV accumulate, we may need to revise early estimates. The ANA's criterion of "minimal risk" might then be exceeded, leaving nurses with uncertain guidance.

Thus, one challenge remains from the ANA statement: What level or quantity of risk is a nurse obligated to accept as part of the job? Empirically we know that risk is very unevenly distributed across occupations. In an often quoted British study, for example, the workers' yearly risk per million workers of fatal accidents in clothing manufacture was four, whereas the risk of construction work was 150, and that of deep sea fishing 2,800. [3] We know too that there is likely a 'risk premium' reflected in the salaries of those in occupations that, like nursing, require higher education and can be unionized. [4] (The risk premium may reflect some form of bargaining process.) Ethically, however, we do not know what level of risk is a legitimate portion of any job, even apart from the special moral character of health care. A criterion like "minimal risk" is probably both too vague and too low to serve. Nor finally do we know how to react when perceptions of risk systematically deviate from scientific estimates of risk.

Most plausibly, perhaps, the ANA's adoption in this statement of a "minimal risk" standard was meant as a vague placeholder rather than a specification. It is clear that the ANA's chief object in issuing the statement was to address ethics and exposure to HIV, rather than to resolve in any final way the general question of occupational risk. (Compare in this connection the Canadian Nurses Association statement, which asserts an ethical obligation to care for HIV-infectious patients without, however, attempting to provide a general criterion for occupational risk. [5])

This was a necessary immediate task. For the longer term, though, a specification of what level of risk a nurse must accept as a matter of professional duty must be delineated. AIDS will not be the last occupational hazard nurses confront. Indeed, a variable level, responsive to different functional requirements called forth by different forms and venues of nursing care, may be necessary.

Medicine

War has often been noted as a science- and technology-forcing phenomenon, accelerating the pace of development so that technical achievements that would ordinarily take decades to accomplish are completed in years or even months. The (perhaps belated) "war" on HIV disease appears to be acting in the same way, forcing rapid change in medical science and technology. Ethics too has been affected by this accelerated development. More precisely: What has been known traditionally as the "positive ethics" of the profession--in this case, the ethical beliefs officially sanctioned by organized medicine--has been subjected to "forced growth." [6] Change that would ordinarily progress at a leisurely pace has been compressed drastically. The stances on professional responsibility and the treatment of HIV-infected patients taken by the American Medical Association's Council on Ethical and Judicial Affairs (the significant new name of what was known, until 1985, as the Judicial Council) illustrate this process.

The first statement is dated December 1986 and reads in its relevant portion as follows:

Physicians and other health professionals have a long tradition of tending to patients afflicted with infectious disease with compassion and courage. However, not everyone is emotionally able to care for patients with AIDS. If the health professional is unable to care for a patient with AIDS, that individual should ask to be removed from the case. Alternative arrangements for the care of the patient must be made. [7]

As an answer to the precise question of the professional obligation to treat HIV-infectious patients this statement was somewhat indirect. It did nonetheless incline the reader to believe--and, I think, intentionally so--that there is no obligation upon physicians to refrain from rejecting patients on grounds of their HIV status. The exception, "emotional inability," that it established to the lengthy compassionate tradition of caring seems vague enough as to excuse anyone who feels in need of an excuse. What is the genuine difference, after all, between being emotionally unable, and feeling emotionally unable, to care for a patient? And, what is the evidentiary difference between suffering emotional inability and claiming emotional inability?

Until the AMA issued its new statement on ethical issues in AIDS in December 1987, [8] therefore, its stance on professional obligation was in stark contrast to that held by the American Nurses' Association. This should not have been, in itself, surprising.

Legally, as independent contractors, physicians are accustomed to being free of any obligation to attend to patients. "A physician is not required to accept as patients all who apply to him for treatment. He may arbitrarily refuse to accept any person as a patient, even though no other physician is available." [9] The AMA's refusal to enunciate an ethical obligation to care for HIV-infectious persons seemed to follow from this general freedom.

More generally, on the "macro" level of health policy, the two professional organizations have held differing stances on a social "right to health care," a concept that has been supported by a variety of nursing associations for quite as long as medical associations have resisted it. (*2) Nursing, with its background affirmative commitment to treat, needed to respond to the question, "Is it ethically mandatory to treat a patient who is HIV infective?" Lacking such a background commitment--a lack shared by the AMA, the American Dental Association, and others--the properly focused question is different, and must be phrased in a negative parallel. No patient ever has a right to treatment for these professions, and so, broadly speaking, professionals are never obliged to treat. For these professions, the question is, "Does a health care worker have a right to refuse to treat a patient on grounds of that patient's HIV-infective status; or, does he or she rather have an obligation to refrain from rejecting patients on that specific account?"

In retrospect we see that the facts of medicine and the internal logic of the AMA's principles and interpretations of ethics itself could not be reconciled with the early, blanket statement absolving physicians of a duty to treat on grounds of "emotional inability." The absolution would not serve, first, for the class of physicians who are contractually obliged to treat patients. That class includes employees of some forms of health care systems, and, at least as significant, interns and residents. The AMA has held that the fulfillment of such contracts is required by professional ethics. [10] Whatever "emotional inability" to treat HIV-infectious patients means, it is a condition surely no less common among house officers than among attending physicians. Yet interns and residents have been mainstays of AIDS treatment in high-risk areas, and, were they too exempt from any duty to treat, the burden would devolve upon the general medical profession. The facts of AIDS treatment implied a contradiction between earlier ethical statements, then, and the ethical exemption from treating AIDS patients.

A further conflict existed between that exemption and preexisting understandings of professional ethics that arose for self-employed physicians as well. The AMA had recognized an exceptional positive duty to treat as arising in emergency circumstances and as a continuing duty when a physician-patient relationship had been already established. [11] The latter duty to provide continuing care has roots in the common law; the former, of emergency care, is presented as purely ethical in origin.

A physician may divest him or herself of these positive duties by arranging for a referral to another competent practitioner. But what if no other practitioner is available to accept the referral? Is the physician obliged to care for the patient "for the duration," until such a referral has been successfully arranged; or in the alternative, may he or she ethically abandon the patient after a reasonable good-faith effort to secure another physician?

The AMA's claim is that a physician who wishes to withdraw from the care of a patient must notify the latter "sufficiently long in advance of withdrawal to permit another medical attendant to be secured." [12] That phrase, and its logical underpinnings, seemed to dictate the stronger, former obligation of attendance until a referral has been accomplished. The background condition, of freedom of practice and of refusal, has been superseded by the patient's right not to be neglected. When these circumstances obtain, the AMA has declared that the patient's interest ethically overrules the physicians' freedom. The criterion chosen as the duration of the commitment is avowedly relative to the circumstances of the case.

Reportedly, in the case of dentistry, the circumstances of HIV referral are such in some cities as to impose upon these practitioners a duty of indefinite duration, as acceptance of new HIV-infectious patients per se has become rare. [13] Imaginably, the same may occur in the practice of medicine, particularly within those locales without teaching institutions and the accompanying captive labor of interns and residents. Again, the circumstances of AIDS presented the AMA with a contradiction between its prior ethical commitments and an exemption from a duty to treat HIV-infectious patients on emotional grounds.

The AMA faced therefore practical and ethical motivations to change its stance. Yet how could a professional obligation to treat AIDS patients be established by an organization that had persistently denied the existence of any general obligation to treat any patient? The answer to this paradox arises by considering the peculiar nature of the 1986 statement, which singled out AIDS as a reason for refusing to treat a person.

Even within the narrowest legal view, a right to refuse a patient for no reason whatsoever does not imply a right to refuse a patient for any reason whatsoever. In other words, a right to arbitrary action does not imply a right to invidious discrimination. In fact, as a harbinger to changing its stance, in the summer of 1987 the AMA adopted a resolution that HIV status should be statutorily included as a handicapping condition, hence, as an illegal ground of discrimination. [14] Even prior to legislative action, such a resolution implied the association's desire to include AIDS within its statement, "[P]hysicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, or any other basis that would constitute illegal discrimination." [15]

The upshot of all this was a statement issued by the AMA's Council on Ethical and Judicial Affairs in December of 1987. [16] While not explicitly reversing its earlier statement on "emotional inability," the Council does substantially overrule its import. Its relevant portions read:

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....

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 d' crimination.... Thus, it is the view of the Council that Principle VI does not permit categorical discrimination against a patient solely on his or her seropositivity. A physician who is not able to provide the services required by persons with AIDS should make an appropriate referral to those physicians or facilities that are equipped to provide such services.

This new statement may be reconciled with--indeed, in a sense, subsumes--the prior exemption for "emotional inability." A physician "who is not able to provide the services required" should refer the patient elsewhere; and emotional incapacity is, presumably, one source of inability. Similarly, the provision of treatment is "beyond the realm of competence" of the emotionally incapacitated. However, the entire tone and tendency of the presently controlling 1987 statement contrasts with that of the 1986 one, and implies that physicians are commonly obligated to treat HIV-infectious patients.

The Role of a Code of Ethics

The advantage of ethical statements over ad hoc reactions and adjustments (and of the even more general codes of ethics over statements) is that their very generality keeps their authors honest. Rule-like statements of principle express the formal requirement of Aristotelian justice ("treat like cases alike"). Substantively as well, general statements offer advantages. They are purged of special pleading, and at the same time are designed to appeal to the broadest (not lowest) common denominator of ethical commitment.

While in theory general rules could be draconian as easily as benign, in practice, as Lon Fuller noted in his discussion of the internal morality of law, satisfying the requirements of effective rule-making is not an ethically neutral influence. [17] The positive influence that a rule-like structure has upon substance is the reason for our ethical commitment to the abstract and, in principle, seemingly neutral concept of the "rule of law." The widespread acknowledgment of this connection partially grounds the very strong motivation professional associations have towards establishing codes of ethics. (The AMA's original code was debated and adopted as one of two principal agenda items at its first general meeting in 1847.) It is therefore a fair demand that the associations live up to these requirements, for example, generality. And it is fair grounds for criticism should they fail, explicitly or by logical implication, to live up to this requirement.

In several respects, as we have seen, the AMA's general code pulled medical ethics toward a limited right to treatment, while its early AIDS statement attempted to hold the line at laissez-faire practice. I do not doubt that the AMA, for one, felt that it was expressing the actual moral beliefs (the positive morality) of its membership when it formulated its first AIDS statement. Yet that position was not stable, with the result being a tacit reversal of the AMA statement on professional obligation and AIDS. Some practical problems with the early stance were noted above. No doubt, further external pressures, perhaps political pressures, were operative as well. From my point of view, however, the most interesting pressure for change came from within: the cognitive dissonance aroused by earlier ethical commitments of the AMA, which implied that in general physicians had no right to refuse to treat AIDS patients, as contrasted with the wish of many to be free of that burden.

For some authors, codes of ethics are interesting primarily because they track the moral beliefs of professionals. Veatch writes, for example, that modern codes "can reasonably be expected to reflect the basic ethical views of the organizations that have endorsed them. In fact it might be argued that documents that are the product of practitioners rather than theoreticians reflect even more accurately the ethical stance of the group than do more systematic efforts at developing theories of medical ethics." [18]

Yet codes expressing the ethical stance of the average practitioner of limited altruism are a recent aberration in the history of professional ethics. Medicine has traditionally relied upon oaths and statements of principle attributed to exemplars of practice: Hippocrates, Maimonides, Percival, and others. These statements were chosen for their excellence rather than a supposed representative quality.

I feel that ethical codes and statements of professions should do more than express the positive morality of the membership in question. They are, or should be, written under what are commonly considered optimal conditions: in a cool, calm moment, free from immediate pressures and special distorting circumstances, with access to much available knowledge and the contributions of those with a variety of perspectives. For the adherents of "ideal observer" views of ethics, or of Rawlsian "original position/veil of ignorance" theories of justice, the circumstances under which codes may be prepared are in fact definitive of normative validity, which is judged by rules of procedure rather than by the substance of the final product.

Codes should not therefore simply mirror the practice and views of professionals, warts and all. That practice and those views have been formed--and deformed--under the pressure of circumstances that do not press upon the code's authors. Much practice is not excusable; much that is excusable is not justifiable. Ethical materials can reform--and I believe, in our case, have contributed to reforming--professional views and practice by encompassing only those principles that are defensible within and without the profession.

References

[1] Robert M. Veatch, "Challenging the Power of Codes," Hastings Center Report 16:5 (October 1986), 14-15.

[2] American Nurses' Association Committee on Ethics, "Statements Regarding Risk v. Responsibility in Providing Nursing Care," November 13, 1986.

[3] E.E. Pochin, "Risk and Medical Ethics," Journal of Medical Ethics 8 (1982), 180-84.

[4] Julie Graham and Don Shakow, "Hazard Pay for Workers: Risk and Reward," Environment 23:8 (October 1981), 14-20, 44-45. Some foundational issues on wages and occupational risk are discussed in my monograph, Consensuality, Regulation and Societal Risk, Law Reform Commission of Canada, Project on Protection of Life, Health and the Environment, 1984.

[5] Board of Directors of the Canadian Nurses Association, "Position Statement on Care of the Client with AIDS," October 1987.

[6] Henry Sidgwick, The Methods of Ethics (London: Macmillan, 7th ed., 1967 [1907]).

[7] American Medical Association, Council on Ethical and Judicial Affairs, "Statement on AIDS," December 1986.

[8] AMA Council on Ethical and Judicial Affairs, "Ethical Issues Involved in the Growing AIDS Crisis," December 1987.

[9] American Medical Association, Medicolegal Forms with Legal Analysis (Chicago: AMA, 1973), 1.

[10] American Medical Association, Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association - 1986, Opinion 9.11, "Physician-Patient Relationship."

[11] American Medical Association, Current Opinions - 1986, Principles of Medical Ethics, Principle VI.

[12] American Medical Association, Current Opinions - 1986, Opinion 8.10, "Neglect of Patient."

[13] "AIDS Clinic Being Weighed by Chicago Dental Society," New York Times, July 21, 1987, B4.

[14] See Recommendation 13 noted in "AMA House of Delegates Adopts Comprehensive Measures on AIDS," Journal of the American Medical Association 28:4 (July 24/31, 1987), 425-26.

[15] American Medical Association, Current Opinions - 1986, Opinion 9.11, "Physician-Patient Relationship."

[16] AMA, "Ethical Issues Involved in the Growing AIDS Crisis."

[17] Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969).

[18] Robert M. Veatch, "Codes of Medical Ethics: Ethical Analysis," in W. Reich and L. Walters, eds., Encyclopedia of Bioethics, vol. 1 (New York: Free Press, 1978), 172.

(*1) Most precisely, our concern is with those capable of transmitting disease: "HIV-infectious" rather than "HIV-infected" individuals; currently the two groups are believed to be identical.

(*2) The difference is not, incidentally, reflected in the principles of ethics adopted by these associations. All require that the professional provide competent and humane care to patients, but none say whether this means that persons are entitled to be patients; or, whether professionals are obliged to accept them as such.

Benjamin Freedman is associate professor at the McGill Centre for Medicine, Ethics and Law, and clinical ethicist at the Jewish General Hospital, Montreal.
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Title Annotation:human immunodeficiency virus
Author:Freedman, Benjamin
Publication:The Hastings Center Report
Date:Apr 1, 1988
Words:4419
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