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REVIEW: Conflicts of Conscience in Health Care: An Institutional Compromise


Notes

1. Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. xii-xiii (hereinafter "Conflicts.")

2. John Paul II, Encyc. Evangelium Vitae (25 March, 1995) 74. (Accessed 2009-12-12)

3. Conflicts, p. 1.

4. Conflicts, p. 256

5. Conflicts, p. 33, 241, 257

6. Conflicts, p. 245

7. Murphy, Sean, Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers.

8. Conflicts, p. 256

9. Conflicts, p. 38. Exclusive focus on abortion was one of the criticisms of an American health care reform bill (HR 3590) by the US Conference of Catholic Bishops. "[C]ritically important conscience protections on issues beyond abortion have yet to be included in the bill," they wrote. "To take just one example, the bill fails to ensure that even religious institutions would retain the freedom to offer their own employees health insurance coverage that conforms to the institution's teaching." Letter to the United States Senate from the US Conference of Catholic Bishops, 20 November, 2009. (Accessed 2009-12-05)

10. Conflicts, p. xiv

11. Conflicts, p. 38

12. Conflicts, p. 19-75

13. Conflicts, p. 70, 74

14. Conflicts, p. 146, 165-193

15. Conflicts, p. 14, 74-75, 97, 112, 146, 165-193

16. Conflicts, p. 111-113

17. Conflicts, p. xi

18. Conflicts, p. 228

19. Conflicts, p. 24, 99, 256

20. Conflicts, p. 56, 80, 245

21. Conflicts, p. 129, 172

22. Conflicts, p. 167, 227. Note that she rejects the demand that all physicians should be made to achieve technical competence in the procedure. This requirement, too, would seriously undermine the compromise she proposes. Conflicts, p. 205

23. Conflicts, p. 75. She later cites a survey that found "four out of five women supported policies allowing individual pharmacists to refuse to dispense contraceptives when the pharmacy bore the obligation of assigning another employee to fill the prescription." The results were reversed when the obligation was removed. Conflicts, p. 104

24. Conflicts, p. 99

25. Conflicts, p. 84

26. However, the author perceptively notes that the pursuit of moral pluralism has generated conflict, which many have tried to avoid by forcing people "to restrict their beliefs to their personal lives." Conflicts, p. 22

27. Conflicts, p. 135

28. Conflicts, p. 85

29. Conflicts, p. 84. "No one can empirically prove that abortion kills a person with full moral status," she writes, "or that contraception is an offense against God." Conflicts, p. 148. Similarly - though she does not say it - no one can, in her terms, prove that abortion does not kill a person with full moral status, or prove that contraception is not an offense against God.

30. Conflicts, p. 85.

31. Conflicts, p. 87-88, 90-93

32. Conflicts, p. 182-84. The author cites a refusal to provide prescription drugs as an example of the the kind of rare exception she has in mind.

33. Conflicts, p. 10

34. Conflicts, p. 22-23

35. Conflicts, p. 80-81

36. Conflicts, p. 86

37. Conflicts, p. 82. See Final Report of the Tuskegee Syphilis Study Legacy Committee (May 20, 1996). University of Virginia, Claude Moore Health Sciences Library. (Accessed 2009-09-17.) The author also refers to human experimentation on concentration camp inmates during the Holocaust (Lifton, Robert Jay, The Nazi Doctors: Medical Killing and the Psychology of Genocide. New York: Basic Books, 2000) and the participation of physicians in abusive interrogations and torture, citing Matthews, Richard G., "Indecent Medicine: In Defense of the Absolute Prohibition against Physician Participation in Torture," Am. J. Bioethics 6, no.3 (2006):W34

38. Marsh, James H., Eugenics: Keeping Canada Sane. The Canadian Encyclopaedia (Accessed 2009-09-17)

39. Muir v. The Queen in right of Alberta, 132 D.L.R. (4th) 695. Court File No. 8903 20759, Edmonton, Alberta. Court of Queen's Bench, Veit J. January 25, 1996 (Accessed 2009-09-17)

40. Conflicts, p. 82.

41. Conflicts, p. 81, quoting Lesnick, Howard, "The Religious Lawyer in a Pluralist Society," Fordham Law Review 66 (1998), 1469, 1489-1490.

42. Lesnick, Howard, "The Religious Lawyer in a Pluralist Society," Fordham Law Review 66 (1998), 1469, 1489-1490. Quoted in Conflicts, p. 81.

43. Conflicts, p. 81.

44. Identifying Julian Savulescu and Rosamund Rhodes in particular. Conflicts, p. 58, 62

45. Conflicts, p. 101.

46. Conflicts, p. 80.

47. Conflicts, p. 206-207, 214

48. Conflicts, p. 13-14, 97, 117-143. She specifies that the goal is "meaningful, not merely nominal availability." Conflicts, p. 168. The author acknowledges that delivery of health care involves other professions and entities, so implementation of the compromise would require its adaptation and application to them. Conflicts, p. 286 note 38.

49. Conflicts, p. 181, 184, 188

50. Conflicts, p. 117-118

51. Conflicts, p. 125-126

52. Conflicts, p. 127-129

53. Conflicts, p. 130-132

54. Conflicts, p. 14, 112, 211-212

55. Conflicts, p. 213

56. Conflicts, p. 101, 111-112, 208

57. Conflicts, p. 230

58. Conflicts, p. 181-182

59. Conflicts, p. 185-186

60. Conflicts, p. 186-187

61. Conflicts, p. 189

62. Conflicts, p. 184

63. Conflicts, p. 217-219, 222

64. Conflicts, p. 254

65. Conflicts, p. 145

66. Conflicts, p. 147-163

67. Conflicts, p. 147

68. Conflicts, p. 215

69. Conflicts, p. 153-155

70. Conflicts, p. 151

71. Conflicts, p. 156

72. Conflicts, p. 215, 217-219, 222-223

73. Conflicts, p. 215, 219-223

74. Conflicts, p. 215, 223-228

75. Conflicts, p. 231-232

76. Conflicts, p. 229-231

77. Conflicts, p. 233. Quoting Veatch, Robert M., The Patient-Physician Relation: The Patient as Partner, Part 2. Bloomington Indiana University Press, 1991, p. 152

78. Conflicts, p. 229

79. Conflicts, p. 233-235

80. Conflicts, p. 236

81. Conflicts, p. 244

82. Conflicts, p. 14, 214

83. Conflicts, p. 196-201, 203

84. Conflicts, p. 207

85. Conflicts, p. 204- 207, 214

86. Conflicts, p. 14

87. Conflicts, p. 23

88. Conflicts, p. 24

89. Conflicts, p. 23

90. ". . . preferences based on racist, sexist, homophobic, or other sorts of bigoted views can be appropriately excluded from legitimate discourse as entirely illogical and not even arguably correct." (Conflicts, p.92). ". . . invidious discrimination is clearly an evil . . ." (Conflicts, p. 155)

91. Conflicts, p. 201. Similarly, she agrees that a physician would be justified in refusing to assist a patient to do something "truly wrong."(Conflicts, 84)

92. Conflicts, p. 201

93. Conflicts, p. 85

94. Conflicts, p. 168-172

95. A more extended discussion of the proposal than is attempted here would necessarily involve more detailed critical evaluation. For example: while the author's plan is designed to permit objecting physicians to continue in the profession, it would appear that they (and others who share their convictions) may be excluded from the government of the profession, at least to the extent that it would make them complicit in the provision of services to which they object. It is not clear what long term consequences this might have for the profession and the viability of the compromise.

96. See, for example, Letter to Calgary Co-operative Association, 19 December, 2001

97. Conflicts, p. 146; Hippocratic Registry (Accessed 2009-12-09)

98. Conflicts, p. 236-237

99. Skinner vs. Oklahoma 315 US 535 (1942) Quoting Tigner v. Texas, 310 U.S. 141, 147 , 60 S.Ct. 879, 882, 130 A.L.R. 1321. FindLaw for Legal Professionals (Accessed 2009-09-22)

100. ". . .strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. . .When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment." Skinner vs. Oklahoma 315 US 535 (1942) FindLaw for Legal Professionals (Accessed 2009-09-22)

101. Criminal Law Lawyer Source: "Discrimination".(Accessed 2009-09-22)

102. Conflicts, p. 149-150,156-157

103. Conflicts, p. 155

104. This kind of alternative view is explored succinctly from a secular perspective in Somerville, Margaret, The Case Against "Same Sex Marriage." A Brief Submitted to The Standing Committee on Justice and Human Rights (FINAL VERSION) McGill Centre for Medicine, Ethics and Law, Montreal, Québec (April 29, 2003) (http://www.marriageinstitute.ca/images/somerville.pdf) Accessed 2009-12-09

105. Conflicts, p. 92, 149-150,155

106. Conflicts, p. 149-150

107. See, for example, Submission to the College of Physicians and Surgeons of Ontario Re: Physicians and the Ontario Human Rights Code, 8 October, 2008.

108. Conflicts, p. 217-218

109. College of Physicians and Surgeons of British Columbia, Fetal Sex Determination. (Accessed 2009-09-20). See also Society of Obstetricians and Gynaecologists of Canada Policy Statement No. 198: Statement on Gender Selection (November, 2007); SOGC Policy Statement No. 192: Fetal Sex Determination and Disclosure (April, 2007) (Accessed 2009-09-20). Fernandez-Lynch comments on the CPSBC policy (Conflicts, p. 127-128), but the citation in the end note (Conflicts, p. 289no. 27, ) is inaccurate.

110. A document from the American Bar Association, quoted by the author at p. 232, appears to make this claim. Hanlon, Stephen F., American Bar Association Section of Individual Rights and Responsibilities, Health Law Section, Report to the House of Delegates, February, 2005, p. 1. (Accessed 2009-12-09)

111. Conflicts, p. 226-229

112. Conflicts, p. xii

113. Conflicts, p. 35, citing [n61, p 270] Eisgruber, Christopher L., Sager, Lawrence G. "The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct." U. Chi. L. Rev. 61 (1994): 1245, 1291

114. "[T]he interior, quintessentially human voice that speaks to us of goodness and duty, the voice we must obey if we are to keep our integrity." Conflicts, p. 35, quoting Hasson, Kevin Seamus, The Right to be Wrong: Ending the Culture War over Religion in America. San Francisco, CA: Encounter Books, 2005. p. 14.

115. Conflicts, p. xii

116. Conflicts, p. 10

117. For example, having frequently referred to the importance of personal or moral integrity, the author nonetheless asserts that, in what she calls 'hard cases', the personal integrity of a physician "can be outweighed by the need for professional integrity." (Conflicts, p. 196-197)

118. Conflicts, p. 12

119. Conflicts, p. 12

120. Conflicts, p. 24, 99

121. Conflicts, p. 224

122. Contract, social: The imaginary device through which equally imaginary individuals, living in solitude (or, perhaps, nuclear families) , without government, without a stable division of labour or dependable exchange relations, without parties, leagues, congregations, assemblies or associations of any sort, come together to form a society, accepting obligations of some minimal kind to one another, and immediately or very soon thereafter binding themselves to a political sovereign who can enforce those obligations. Honderich, Ted (Ed.) The Oxford Companion to Philosophy (2nd Ed.) Oxford: Oxford University Press, 2005. p. 174

123. Conflicts, p. 6, 10, 13, 43, 47, 49, 52, 54, 57, 58, 70-75, 86, 88-89, 111, 120, 123, 124, 132, 136,156, 197, 199, 207, 250

124. Conflicts, p. 13, 38-39, 43

125. Conflicts, p. 14-15. This probably explains why Fernandez Lynch later applies a statement from Pope John Paul II in support of the polemical assertion that "physicians cannot be permitted to hold physicians hostage to their personal moral beliefs. Conflicts, p. 99; p. 284, n.1. "John Paul II observed that 'freedom of conscience does not confer a right to indiscriminate recourse to conscientious objection. When an asserted freedom turns into license or becomes an excuse for limiting the rights of others, the state is obliged to protect, also by legal means, the inalienable rights of its citizens against such abuses.'" The fragment of text chosen by the author is misleading because she has taken it is seriously out of context. Her claim that the Pope "was referring to the dangers of political fundamentalism in denying human rights" is a manifestly inadequate gloss of complex document about freedom of conscience. No on actually familiar with the writings and thought of John Paul II would have attempted such a spurious association. For the source (incorrectly cited by Fernandez Lynch) see John Paul II, If You Want Peace, Respect the Conscience of Every Person. Message for the XXIV World Day of Peace, 1 January, 1991. (Accessed 2009-12-09)

126. Conflicts, p. 121-127

127. Conflicts, p. 133

128. Conflicts, p. 127-129

129. Conflicts, p. 130-132

130. Conflicts, p. 133, 226-229

131. It is the province of science to determine when a human individual begins to be - that is, to exist. The existence of a human being is a purely biological matter. However, science cannot determine what moral obligations are called forth by the existence of a human being, nor can it determine that the individual is a human person. That is a philosophical question, and science is not competent to decide philosophical questions. Its correct and limited role is to provide factual data that philosophers and ethicists incorporate into their deliberations. Irving, Dianne N., "When do Human Beings Begin? 'Scientific' Myths and Scientific Facts." International Journal of Sociology and Social Policy 1999, 19:3/4:22-47

132. Fernandez Lynch cited a paper by the Project Administrator as an example of an unworkably broad understanding of "needs," apparently because the paper did not specifically define "needs." The point of the paper, however, (and the reason for the absence of the kind of definition she was seeking) is precisely the point here: that such a definition presumes some kind of underlying definition of the human person. Conflicts, p. 130-131; Murphy, Sean, Freedom of Conscience and the Needs of the Patient. Presented at the Obstetrics and Gynaecology Conference New Developments - New Boundaries in Banff, Alberta (November 9-12, 2001). Exactly same point was made in a second paper [Murphy, Sean, Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers.] cited and quoted twice by the author (Conflicts, p. 8, 256).

133. Fernandez Lynch apparently sees the origin of the current controversy as a conflict between physician and patient autonomy, describing the patient autonomy movement as a "challenge to the autonomy of physicians." (Conflicts, p. 22) This is at least in part because some prominent commentators have explained it in those terms. Proponents of what she calls the "patient-centric" approach, she says, leave little or no room for physician autonomy (Conflicts, p. 61). In contrast, she quotes Edmund Pellegrino's assertion that an attack on physician autonomy is an assault on "an essential part of the person's humanity. . .". (Conflicts, p. 67, quoting Pellegrino, Edmund D., "Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician Patient Relationship," J. Contemp. Health Law & Policy 10 (1993) 47, 58-59.) She focuses on finding ways to "protect the autonomy of both parties" and "preserve the autonomy of all interested individuals" (Conflicts, p. 87, 99). When she argues for that objecting physicians should violate their convictions in hard cases, she appeals to the principle of autonomy: their autonomous decision to enter the profession, and the lesser autonomy of patients (Conflicts, p. 196-198). Similarly, she justifies limitations on freedom of conscience by describing them as "essential to the protection of patient autonomy, safety or serious medical interests."(Conflicts, p. 229) It is significant that the author repeatedly emphasizes the need to preserve autonomy rather than integrity, and places autonomy - not integrity - on par with safety and "serious medical interests." The author's views reflect the dominant position that autonomy has achieved in contemporary thought.

134. When working out the ethical problem of conscientious objection in hard cases, the author conducts the discussion entirely within the framework of autonomy and choice, concluding that freedom of conscience should be subordinated when it is necessary to preserve freedom of choice for the patient. (Conflicts, p. 196-199) Elsewhere she asserts that patient choice must not be compromised by physician views about what services are appropriate or optimal.(Conflicts, p. 203)

135. In the author's case, consider her prejudice against religious beliefs that purport to be based on absolute standards of right and wrong. (Conflicts, p. 23-24)

136. The tendency of the law to identify religious belief as an expression of personal autonomy is discussed in Berger, Benjamin, L., Law's Religion: Rendering Culture. Osgoode Hall Law Journal, Vol. 45, No. 2. (Accessed 2009-09-22) The author refers to the importance of "moral autonomy" Conflicts, p. xiii-xiv, 7, 196) and agrees with John Rawls that moral pluralism is beneficial because it permits individuals "to pursue their own conceptions of the good." (Conflicts, p. 22)

137. The author describes monopoly control of power as characteristic of professionalism (Conflicts, p. 10, 69-70, 79, 86, 132, 214), and identifies power and admiration as forms of compensation formerly paid to physicians as part of a purported social contract (Conflicts, p. 46). Physician power is offered as one of the explanations for the comparatively recent development of controversy about freedom of conscience in health care (Conflicts, p. 19), and resistance of physicians to the patient autonomy movement is explained as an attempt by the profession "to reclaim some of its lost power." (Conflicts, p. 22) The author validates professional ethics to the extent that they have "developed as part of the negotiation of power with the public." (Conflicts, p. 136)

138. Hence the centrality of social contract theory in the author's approach.

139. The author asserts that failure to obtain the consent of the victims is "a major reason" for the historical and professional condemnations of the conduct of Nazi physicians during the Holocaust and of American researchers involved in the Tuskegee experiment, (Conflicts, p. 82) though this is not clearly stated as her own view. She questions the idea that consent is always sufficient to justify a procedure, but the discussion is inconclusive. (Conflicts, 83). However, when she later justifies the suppression of what she calls the "moral autonomy" of an objecting physician in a hard case, she does so precisely because of the physician's alleged implied consent to subordinate his "personal integrity" to "professional integrity" upon entering the profession. Alternatively, she alleges that he has a duty to consent in such circumstances. (Conflicts, p. 196-197) This seems inconsistent with her earlier rejection of the "consent paradigm" of medical professionalism (Conflicts, p. 48-57) That conclusion, however, was based on her belief that physicians could not be shown to have consented to meet all patient demands, not on rejection of the notion of justification by consent.

140. Canada's Chief Justice based a right to assisted suicide (distinguished from murder only by consent) on the fundamental importance of individual autonomy and self-determination" and "the promotion of individual autonomy." Re: Rodriguez and Attorney-General of British Columbia et al; British Columbia Coalition of People with Disabilities, et al, Intervener, 107 DLR (4th) 342, Supreme Court of Canada

141. Conflicts, p. 223

142. Thus, the author claims that if a large number of physicians were to refuse to provide services demanded by the public, they would act improperly by exercising legislative power without the consent of the governed. (Conflicts, p. 69) It would, she asserts, be "an illegitimate imposition of views" on those who disagree. (Conflicts, p. 86) Similarly, she describes conscientious objection in hard cases as a political act that usurps legitimate government authority. (Conflicts, p. 201)

143. The author appears to accept the view that there is no moral equality (of persons) in the absence of a balance of power (Conflicts, p. 198, quoting Fenton and Lomasky). "T]he power imbalance inherent in the doctor-patient relationship," (Conflicts, p. 238) has become a dominant theme not only in the medical profession, but in other disciplines. Consider, for example, the themes of power and control reflected in the philosophy of the McMaster University School of Social Work: "As social workers, we operate in a society characterized by power imbalances that affect us all. These power imbalances are based on age, class, ethnicity, gender, geographic location, health, physical ability, race, sexual preference and income. We see personal troubles as inextricably linked to oppressive structures. We believe that social workers must be actively involved in the understanding and transformation of injustices in social institutions and in the struggles of people to maximize control over their own lives." (Accessed 2009-12-11)

144. Arendt, Hannah, "Ideology and Terror: A Novel Form of Government." The citations and quotes attributed to her are from this chapter, which was added to the 1958 edition of her 1951 book, The Origins of Totalitarianism. (Accessed 2007-11-08)

145. The Universal Declaration of Human Rights (1948), Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (Accessed 2009-12-11)

146. Maritain, Jacques, Man and the State. Chicago: University of Chicago Press, 1951, p. 77

147. Maritain, Jacques, Man and the State. Chicago: University of Chicago Press, 1951, p. 77-78

148. Maritain, Jacques, Man and the State. Chicago: University of Chicago Press, 1951, p. 110

149. John Paul II, Encyclical Centesimus Annus (1991) 46. (Accessed 2007-11-15)

 

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