Matching View
These points give us sufficient reason to explore another position, the Matching View defended by Holly Fernandez Lynch. This view suggests that we should establish a doctor-patient values-matching system;4 this preserves physician conscience and avoids scruples-based conflicts in society. She argues that state licensing boards should ensure that patient demand for various medical services is met by a sufficient supply of practitioners, and continues:
However, if access problems remain as a result of conscientious refusals, patients should seek compensation from these boards rather than from refusing physicians. Physicians should not be subject to
The Inescapability of Reasons-Assessment 53 individual liability or professional discipline for their refusals even when thev stand as the last doctor in town.
(14)
On this view, liability clearly falls onto the state licensing board responsible for matching patients to doctors who possess a similar value system and will thereby offer the full range of services requested by the patient. Fernandez Lynch motivates the central idea behind her view as follows:
There may in fact be as many strains of medicine as there are value systems, and patients may prefer to be treated by physicians with similar values, who, while refusing to offer certain medical services normally within the ambit of their chosen medical specialty, are nevertheless capable of providing competent and valuable patient care. Rather than banning or sanctioning these physicians, the government, the profession, and society should allow both doctors and patients to seek out like-minded others.
(87)
The Matching View, then, consists in a sorting proposal that minimizes (or, if perfectly functioning, obviates) crises of conscience. A central advantage of the position is that it allows providers a proactive method to avoid having to act in ways inconsistent with their values, while minimizing access problems for patients. Such a system could well be established, though it would likely be costly to create and maintain.
There are substantial practical difficulties with setting up this social mechanism based on providers’ and patients’ values, however. How do we deal with providers or patients whose values change over time? What about emerging technologies that have implications for one’s ethical values? If we move beyond practical problems, this view’s attempt to ensure that providers do not encounter patients whose ethical values diverge from their own is philosophically problematic since this proposed solution does not examine the reasons behind a conscience objection. If a provider has (e.g.) sexist beliefs and does not wish to allow women to have access to contraception, say, because this physician is unduly paternalistic and does not think women should have control over their reproductive lives, the Matching View appears to take that reason at face value. This position would aim to ensure that this provider will not have to write a prescription for birth control or counsel a rape victim and discuss emergency contraception.5 Fernandez Lynch clearly states that her proposal is to allow “many strains of medicine” in a value-laden sense, thereby giving doctors the freedom to work with patients who represent “like-minded others.” Yet the idea that providers can simply avoid patients with moral beliefs that clash with their own is troubling. Fernandez Lynch would likely respond that the relevant obligations apply to theprofession itself and not specifically to individual medical providers, or at least that the obligations differ at these two levels. As she says:
There are many conflicting and complementary understandings of a physician’s professional responsibilities, but once we recognize that the obligations of the profession as a whole may not precisely correspond to the obligations of the profession’s component members, we are on the road to an appropriate compromise.
(42)
This emphasis on differential obligations at the individual and collective levels is a main reason Fernandez Lynch proposes her system aimed at the level of the profession. The State licenses medical providers, but this licensing alone is not generally considered sufficient to regard the individual licensed practitioner as a state actor (Fernandez Lynch 60). Instead, the State regulates the conduct of the medical profession itself concerning such matters as the qualifications to practice medicine in a state, the requirements for graduation for medical school, details of continuing medical education, and such. Of course, the State in this capacity also possesses the ability to pursue disciplinary action against a licensed health care professional who acts in an unprofessional manner, and here we see clearly that the individual practitioner retains a key element of professional responsibility. While I am not suggesting Fernandez Lynch claims that providers possess no professional duties at all, I am highlighting that providers retain a greater share of individual responsibility than acknowledged by her arguments. My position is directly contrary to her stated position that even the last doctor in town who refuses a patient “should not be subject to individual liability or professional discipline for their refusals” (14). In the face of ethical disagreement, the circumstances must be considered; individual professional responsibility does not vanish and instead accrue to the State.
Fernandez Lynch’s central claim here is that not all duties of the collective must be discharged by individual providers. Yet concrete examples demonstrate that individual responsibility and culpability exist for medical professionals despite the existence of the collective medical profession and the State. What does the Matching View say about individuals discharging their professional duties in an emergency? In the United States, providing emergency care to patients is mandated by a law entitled the Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986. This law requires basically that hospital emergency departments provide screening examinations for emergency medical conditions and women in active labor and provide stabilizing care or an appropriate transfer (if safe to do so) to another hospital. EMTALA’s original intent was to prevent patient dumping—the practice in which uninsured patients were transferred to other hospitals
The Inescapability of Reasons-Assessment 55 without consideration of their medical condition or the stability of the transfer, for solely financial reasons—but its scope has been significantly expanded, and it is now considered one of the most encompassing laws guaranteeing non-discriminatory access to emergency care and access to the health care system.61 focus on this example because it presents a very compelling case grounded in both law and morality which demonstrates that practitioners have a duty to provide treatment in a case regardless of their ethical beliefs. The latter is supported by elements of professional ethical obligation discussed in Section 1.6, especially the vulnerability of patients, the promise to help inherent in the act of profession, and the ascription of primacy to patients’ interests. Yet Fernandez Lynch’s view would seemingly allow a provider to refuse to treat a patient in a life-threatening emergency case if that involved performing a procedure the provider morally opposed, if this specific preference was made clear within the sorting system. This may even be the case for the “last doctor in town.” This result is fundamentally unacceptable.
Fernandez Lynch could of course reply that this would only be the case if patients accepted this belief in the initial “match.” Yet as argued earlier, I am not convinced that the Matching View can proactively handle all cases due to changing moral beliefs, the creation of new technologies, or the existence of moral uncertainty on the part of a provider about a practice. The same sort of concern applies to emergency cases. The sorting system cannot accurately predict when one member of the pair will be placed in a situation due to a change in beliefs or circumstances that violate one or the other of their stated values. While a defender of the Matching View could claim that the duty to deliver emergency care falls on the profession itself, this is a perilous and implausible position. In sum, Fernandez Lynch’s stance flies in the face of individual professional responsibility: while professionalism requires competent, even-handed care, this view approves substandard and biased treatment by allowing providers to refuse patients for any reason once the practitioner’s ethical preference is registered with the system. This allows medical professionals to hide behind the cloak of collective responsibility at patients’ expense. Even if we accept that each provider does not necessarily perform every service, individual responsibility still applies to the acts of each medical professional and is more salient than Fernandez Lynch’s account acknowledges.
My central points have been that the Matching View’s refusal to evaluate providers’ reasons and its fixation on collective responsibility lead to a dangerous commitment to accommodating biased objections by providers and to creating harmful outcomes for patients. To further reinforce this point I will discuss one more instance of individual professional responsibility. I will focus on the case of providing treatment to HIV-positive patients since it is a particularly forceful and illuminating example. In the mid-to-late 1980s, a controversy arose in which medicalproviders wished to refuse to treat such patients, creating widespread discussion of the issue in medical and bioethics journals. Those who refused did so primarily based on the small yet frightening risk that they would contract HIV. As Pellegrino (1987, 1939) frames the essential issue:
Nothing more exposes a physician’s true ethics than the way he or she balances his or her own interests against those of the patient. Whether the physician is refusing to care for patients with the acquired immunodeficiency syndrome (AIDS) for fear of contagion ... or earning a gatekeeper’s bonus by blocking access to medical care, the question raised is the same. Does medicine entail effacement of the physician’s self-interests—even to the point of personal or financial risk? Is some degree of altruism a moral obligation, or is nonmaleficence the limit of the physician’s mandatory beneficence?
Pellegrino answers these questions in the affirmative: there is a requirement to efface one’s own interests and to act altruistically in this role, and the reason is that these are implications of voluntarily accepting the professional obligations of a physician. Fernandez Lynch wishes to locate the heart of medical professionalism at the collective level, but as I shall now argue, the issue of treating HIV-positive patients suggests that a consensus exists with respect to this controversy that responsibility rests at an individual level. We can support this view by citing points such as the nature of illness and its effect on patients’ moral agency, the fact that medical knowledge is not proprietary but is held as a public trust, and the taking of a public oath to promise to heal (Section 1.6). John Arras adds to these considerations by discussing the harm that comes to patients from such refusals of care as well as the burdens placed on one’s colleagues by denying treatment to HIV-positive patients. The consensus around this issue is encapsulated in the AMA’s statement regarding the duty to treat adopted in 1987: “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” (quoted in Arras 17). This brief discussion drives home the notion that some quite weighty responsibilities reside at the level of the individual practitioner. In this case, we are talking about an objection based on medical risk, not on a moral risk to one’s integrity; hence this example does not squarely ground the claim that medical professionalism resides at an individual level regarding conscientious objection. Yet we can imagine an objection related to treating HIV-positive patients that crosses the medical-moral plane. Arras (17) points out that some objectors to treating HIV-positive patients seem to invoke a moral (or moralistic) belief:
In refusing to deal with such patients, many physicians seem not merely to be saying “Why should I risk my life?” but rather, “Why
The Inescapability of Reasons-Assessment 57 should I risk my life for rhe likes of homosexuals and intravenous drug abusers?
These objectors want to know why they should undergo any risk for a member of a group that, to them, is considered morally suspect. This comes close to being properly considered a conscientious objection, since it involves an ethical belief that is used to object to one’s participation in an activity one morally opposes—perhaps in this connection, a provider feels that treating an HIV-positive patient amounts to complicity in continuing behavior that he or she morally opposes. Arras (20) cites a health care professional who objects in this way by saying: “I would not knowingly treat a homosexual patient with AIDS, but I would treat patients who got the disease by blood transfusion, and I would treat children with AIDS.” This physician distinguishes between types of cases of HIV infection, not treating those who became infected by a choice of their own (via engaging in homosexual behavior) versus those who did not by being born to an HIV-positive mother or receiving an infected transfusion, presumably based on a division reached according to this providers’ own lights. In this sort of case, the AMA has drawn a bright line that rules out refusals of this sort whether they involve a moral belief or not—the physician possesses an individual professional responsibility to treat HIV-positive patients unless he or she is not competent to do so. Even if we accepted the broad distinction drawn by Fernandez Lynch between individual and professional responsibility, I’ve argued that it cannot do the work needed to salvage the Matching View. In addition to the fact that it is unacceptable for professionals to abdicate their role responsibilities, we should not allow medical providers to shift burdens onto their colleagues so that they can gain exemptions based on morally questionable grounds.
I have maintained that Fernandez Lynch’s proposal inappropriately dismisses the notion of individual professional responsibility for medical practitioners. Physicians possess a prima facie obligation to provide medically appropriate and legally available medical care to patients, even if this care conflicts with their moral values, yet the Matching View would allow providers to hide from the very real problem of toleration, of living with others who hold different worldviews. This view does not give appropriate importance to professional duty since it removes the burden of proof from providers; they need not even demonstrate that a substantial countervailing consideration exists that defeats their obligation to serve their patient, but must only register their preferences with the proposed state licensing board. In fact, as Fernandez Lynch explicitly states, providers avoid all individual liability or professional discipline within the sorting system that is the hallmark of the Matching View.
At the heart of this dispute is, in my view, a disagreement about the nature of medical professionalism—following Pellegrino, I see it asemanating from the provider-patient relationship and applying to each physician. After all, each physician has the obligation to ensure that care is delivered only after informed consent is given by the patient—this is not simply a collective obligation. I have given numerous reasons in support of this conception of professional responsibility (Section 1.6), including the holding of monopoly power by medical professionals as well as the compromised agential capacities of patients. Fernandez Lynch (74) directly disagrees with this stance:
Although the profession collectively wields monopoly gatekeeping power, individual physicians are not appropriately described as monopolists when patients have reasonable access to other willing providers. In this circumstance, patients are not uniquely vulnerable to the whims of only a single physician, so with the vulnerability eliminated, refusers can appropriately avoid responsibilities that might otherwise exist to provide services that they find morally objectionable—note that they truly lack a duty, it is not simply excused.
(emphasis in original)
The point about physicians individually not holding monopoly power is taken, given that patients may be able to receive the contested services from another provider in many cases. Yet that seems beside the point; even in the “last doctor in town” scenario Fernandez Lynch does not think the practitioner has an individual responsibility because she waives liability in this case as well. Responsibility again comes back to the collective; in this case, to the state licensing board responsible for overseeing doctor-patient matches. It is troubling to think that providers do not possess an individual duty—not simply that the duty is overridden in certain cases—since whether a physician can deny care on grounds of conscience should involve consideration of the harm involved in the refusal. While Fernandez Lynch could deny the vulnerability of women seeking an abortion and continue repeating that the State can ensure enough practitioners to provide the needed services, in present circumstances both of those claims are false with respect to abortion provision in the US—likely the single most common reason for conscientious objection in medicine— and they will continue to be false into the foreseeable future. The harm and vulnerability experienced by women due to lack of such abortion providers, exacerbated by conscientious objection to the procedure, is substantial. The Matching System would assign the responsibility for securing reasonable patient access to the collective, yet how is the collective going to remedy this shortage in the present political environment in the US? Is the State or the profession going to force some doctors to perform abortions? This is highly unlikely. The appeal to a collective
The Inescapability of Reasons-Assessment 59 obligation simply hands providers a blank check regarding conscientious objection by releasing them from any associated individual professional obligations. The reliance on collective obligation to secure patient access is bound to be an abject failure unless the medical profession can force practitioners to provide services such as abortion to which they are morally or religiously opposed—thereby unravelling itself at its core. The access problem that the Matching View aims to address in its solution to the dilemma of conscientious objection can only be properly addressed if providers accept individual responsibility for the provision of legally acceptable and medically indicated services and some step forward to provide those contested services.
To bring some of the problems to life surrounding the lack of liability due to the absence of individual obligation, imagine a US provider who wishes to avoid caring for patients for suspect reasons: say, a Republican physician who wishes to not care for Democratic patients (or vice versa). This example seems outrageous; a patient’s political affiliation is hardly the sort of consideration that should constitute a countervailing reason to defeat the provider’s prima facie obligation to assist a patient. Fernandez Lynch might object to the hypothetical, countering that no physician would really do such a thing. Yet this schematic example is drawn from a real case. Dr. Jack Cassell, a Florida urologist and registered Republican, strongly opposed “Obamacare” (the Affordable Care Act) and therefore in 2010 posted the following sign on his office window: “If you voted for Obama . . . seek urologic care elsewhere. Changes to your healthcare begin right now, not in four years.” If we understand this case as a kind of conscientious refusal, then Cassell aimed to establish a self-directed doctor-patient values matching system, an outcome seemingly in accord with the Matching View. It does not seem to be a stretch to think that Cassell possesses a relevant core moral belief that leads him to preemptively announce that he does not want to care for patients with certain political affiliations or political beliefs—a result that again appears to be in line with the Matching View. Yet this result is unacceptable. I have argued that medical practitioners possess professional ethical obligations to their patients and that these duties do not disappear in the presence of moral disagreement. The Matching View shields physicians from moral diversity, yet this does not obviously improve medical practice and makes a mockery of professional obligation in medicine.
