Refusal to Care by Leila Volinsky

JONA’S Healthcare Law, Ethics, and Regulation / Volume 10, Number 2 / Copyright B 2008 Wolters Kluwer Health | Lippincott Williams & Wilkins

Refusal to Care Rebecca F. Cady, RNC, BSN, JD

A B S T R A C T

There are many reasons why a nurse might refuse to care for a patient. The nurse manager needs to be aware of the nexus between moral dilemmas in healthcare and the right of providers to refuse to participate in certain controversial procedures, as well as other professional and ethical reasons such as lack of training or fatigue that may lead a staff nurse to refuse a patient care assignment. This article explores each of these situations and outlines federal and state laws that impact this situation. Suggestions are given for the nurse manager to help himself/herself and his/her staff avoid the potential negative consequences of refusals to care. ................................................................................................................................................................

t times, nurses are

know the legal implications when

that procedure. Other potential

faced

profes-

these conflicts arise between

examples include administering

sional dilemmas in

the care needed by the patient

certain contraceptives, withdraw-

providing care to patients. One

and the individual nurse’s rights

ing life support and feedings, par-

of the most common ways that

and duties.

ticipating in an assisted suicide,

with

such dilemmas arise is when

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and transfusing blood products.

The Nurse as a Conscientious Objector

Nurses who find themselves in

that individual nurse at risk,

The classic example of a nurse be-

times referred to as conscientious

such as in the case of an infectious

coming a conscientious objector

objectors. Although this term was

pandemic or when the nurse is

is the situation of a nurse in the

previously used to describe those

not properly trained to care for

obstetrics unit who does not want

the patient. It is important for

to participate in an abortion due

nurses and nurse managers to

to his/her religious beliefs against

.. .. .. .. ..

the nurse is expected to provide care that somehow clashes with the individual nurse’s personal beliefs or which potentially puts

situations wherein the proposed patient care clashes with the nurse’s religious beliefs are some-

Corresponding author: Rebecca F. Cady, RNC, BSN, JD, Grace Hollis Lowe Hanson & Schaeffer, LLP, Visalia, CA 93291 (rcady@gracehollis.com).

JONA’S Healthcare Law, Ethics, and Regulation / Volume 10, Number 2 / April–June 2008

who refused to serve in the military due to personal beliefs, it is now applicable in the healthcare setting. Conscientious objection in the healthcare setting can be defined as the refusal of any member of the healthcare team to take part in some aspect of care for a patient on the basis of conscience.1 Conscience has been described by Baker2 as having 3 characteristics: 1. an internal sense of responsibility that influences judgments regarding right and wrong actions, 2. the consequence of internalization of norms and mores of the culture, and 3. a representation of the uprightness and totality of the person. The issue of whether a nurse can refuse a patient assignment or participation in certain types of care has no straightforward answers because there are many different laws and regulations that address this situation.

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Federal Laws The individual nurse has a right to be free from employment discrimination based on religion under Title VII of the Civil Rights Act of 1964. This law requires employers to ensure that reasonable accommodations are available for the religious practices of an employee unless doing so would create an undue burden in the workplace. Title VII also states that an employer may not discriminate against an employee because of the presence or absence of religious practice. The employer is also required to provide a workplace environment free from religious harassment. Other federal laws also protect the institutional and individual conscientious objectors. The Hyde-Weldon amendment3 prohibits agencies, programs, and state and local governments that get federal funds under the Health and Human Services Appropriations Act from discriminating against a potential recipient because the recipient does not ‘‘provide, pay for, provide coverage of, or refer for abortions.’’ This law does not require the objecting healthcare provider to base his/her objection on moral, religious, or conscientious beliefs. Two lawsuits were filed to prevent the implementation of this law. In California ex rel. Lockyer v United States,4 the State of California challenged this law based on its failure to provide an exception for emergency abortions, which the state believed violated a California law. Lockyer was recently dismissed by a federal judge, who indicated that the state was not able to demonstrate an actual injury, and the claim was not subject to judicial resolution. In National Family Planning and Reproductive Health Association v Gonzales,5 the National Family Planning and Reproductive Health Association asserted that the law is not consistent with the Public Health Service Act regulations, which require all institutions receiving Title X funds to provide referrals for abortions at the request of the patient. In this case,

the court found that the association lacked the standing to challenge the amendment because its members had not actually lost funding as a result of the application of the amendment. The Church Amendment [42 USC Section 300a-7 (effective 2000)] prohibits institutions receiving federal money under the Public Health Service Act, the Community Mental Health Centers Act, and the Developmental Disabilities Services and Facilities Construction Act from requiring providers to perform or assist in performing abortions or sterilizations if doing so would violate the individual’s or the institution’s religious or moral beliefs. The Patient Self Determination Act6 contains a provision in its regulations that permits a hospital not to comply with a patient’s advance directive if the hospital informs the patient of the limitations of its willingness to comply with the directive, and it highlights the differences between the institution’s policy and any conscience-based objections that may be raised by individual providers. It should be noted that courts have required objecting healthcare providers to continue to provide end-of-life care to which they object based on their ethical concerns when the patient’s surrogate requests that care be continued.7 Federal law also prohibits discrimination against individual providers who refuse, based on their religious beliefs or moral convictions, to prescribe or otherwise provide contraceptives in a governmentfunded health plan (Pub L No. 108-7, Section 635).

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Joint Commission Standards The Joint Commission also has standards which impact how a facility deals with its employees who may object to certain patient care activities based on moral, ethical, or religious grounds. The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) recognizes that the individual nurse has a right to refuse to provide certain aspects of care. The JCAHO Standard HR.6 states that the hospital addresses a staff member’s request not to participate in any aspect of patient care. Standard HR.6.1 states that the hospital ensures that a patient’s care will not be negatively affected if the hospital grants a staff member’s request not to participate in an aspect of patient care. Standard HR6.2 states that policies and procedures specify those aspects of patient care that might conflict with staff members’ cultural values or religious beliefs. The JCAHO also requires that this issue be raised in the preemployment process, and the potential employee be made aware of potential conflicts in providing care. If the employee requests accommodation and that is not possible, then the employee should be counseled regarding other options of employment. The employee also needs to be notified that in an emergency, he/she may be required to provide care

JONA’S Healthcare Law, Ethics, and Regulation / Volume 10, Number 2 / April–June 2008

despite his/her cultural, ethical, or religious beliefs.8 The JCAHO’s accredited organizations must also have policies that list the specific aspects of care that may conflict with an employee’s personal religious, moral, or ethical beliefs and allow for the exclusion of certain aspects of care. The hospital must have a process by which requests for exclusion are reviewed, and in cases wherein an employee is excused from providing care, the facility must establish a plan to maintain quality care.8 If an employee makes a request for exclusion, the nurse manager needs to review the request to determine if a reasonable accommodation can be made. If so, then the other employees involved in the accommodation need to be informed. Accommodations will often involve a switch in patient care assignments or working hours for the employee requesting an exclusion. If an accommodation cannot be made, then the employee needs to be informed about other options of employment such as a transfer to another patient care unit or area of the hospital. It is also important to be sure that policies indicate that in an emergency situation, all employees will be required to provide care despite any conflict with their cultural, religious, or ethical beliefs.8

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State Laws In almost every state, laws have been passed to protect healthcare providers who refuse to participate in medical services that would violate their consciences.9 As of March 1, 2008, a total of 46 states allow individual healthcare providers to refuse to perform abortion services; 8 states allow individual providers to refuse to provide services related to contraception; 16 states allow individual providers to refuse to provide sterilization services.10 In Illinois, the Health Care Right of Conscience Act protects healthcare providers from all liability and discrimination as a result of their refusal to ‘‘perform, assist, counsel, suggest, recommend, refer or participate in any way’’ in a healthcare service which goes against their conscience (745 Ill Comp Stat Section 70/1-14). In a study examining the perceptions of physicians’ ethical rights and obligations when conflicts arise between religious conscience and clinical procedures, results reflected that most physicians believe that it is ethically permissible for them to explain their moral objections to patients, and physicians are obligated to present all options and refer the patient to another clinician who does not object to the procedure that the patient is requesting. However, the study also demonstrated that those physicians most likely to refuse to provide controversial treatments (ie, those who were religious and had personal objections to morally controversial clinical practices) were less likely to believe that they must disclose information about options and less likely to believe that they must refer

patients to someone else. The authors suggest that these results should lead patients who want information about and access to such procedures to be proactive in asking their physicians about whether they would have a problem with performing controversial medical procedures.11 This study suggests to the nurse and nurse manager that it is important to keep an eye out as to whether the patient, family, and physician are communicating well on these issues and facilitate the discussion about a controversial procedure early in the process so that a transfer of care can be accomplished without patient care being compromised.

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Patient Abandonment Versus Refusal of an Assignment From a legal standpoint, it is important to differentiate refusal to accept a patient assignment from patient abandonment. Patient abandonment occurs when the nurse engages in a patient assignment and ceases to provide nursing care without appropriately transferring the responsibility for the patient to another professional nurse. When the nurse accepts a patient assignment, the nurse maintains responsibility for that patient until the nurse-patient relationship is ended by the patient’s discharge, the transfer of responsibility to another nurse, or the patient’s refusal of the nurse’s services. If no nurse is available for the transfer of responsibility, then the presently assigned nurse is legally and morally obligated to continue to care for the patient until the time that another nurse becomes available to take over that patient assignment.12 This issue tends to arise when the facility is short staffed, and this can result in licensure discipline, criminal prosecution, as well as potential civil liability for any harm caused to the patient should the nurse abandon his/her assignment. The nurse should also be aware of the position of the state board of nursing regarding patient abandonment. For example, California’s Board of Registered Nursing has published an advisory statement on this issue (NPR-B-01 April 1998), which indicates that for patient abandonment to occur, the nurse must first have accepted the patient assignment, thus establishing a nurse-patient relationship, and then severed that nursepatient relationship without giving reasonable notice to the appropriate person (ie, the nursing supervisor) so that nursing care can be continued by others. The board specifically states that refusal to accept a patient assignment is not patient abandonment. This statement also emphasizes that the nurse must use critical judgment to assess his/her own ability to give safe patient care when declining or accepting requests to work overtime, and refusal to work additional hours or shifts is not considered patient abandonment. Currently, controversy continues about the duties of healthcare providers to give care in an emergency situation caused by a pandemic disease. There are

JONA’S Healthcare Law, Ethics, and Regulation / Volume 10, Number 2 / April–June 2008

no clear legal answers as to what the correct course of action is in such a situation for the individual nurse. However, the American Nurses Association13 has issued a position statement regarding the nurse’s right to accept or reject an assignment. American Nurses Association believes that nurses should reject assignments that put patients or the nurses themselves in serious, immediate jeopardy. American Nurses Association supports the obligation of the nurse to reject an assignment in these situations even if there is no specific legal protection to reject it.13 Some authors note the legal and ethical challenges posed by pandemics on the duty to care and suggest that there is a need for principles regarding obligations of healthcare providers during a disease outbreak to be codified in professional codes of ethics.14

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The Nurse’s Inability to Provide Safe and Competent Care The nurse clearly has a moral and legal duty to refuse overtime if he/she is too tired to provide quality patient care. Many states have begun to consider laws addressing the issue of mandatory overtime for nurses. The nurse who works when he/she is too tired to competently perform nursing duties is subject to disciplinary action by the state board of nursing as well as potential civil malpractice liability and criminal prosecution should patient harm result. In a case that attracted nationwide attention, a nurse in Wisconsin was criminally prosecuted for mistakenly administering a bag of epidural anesthesia through the patient’s intravenous line. The nurse, who was probably fatigued from working extra shifts, mistook the epidural solution for a bag of intravenous antibiotics (State of Wisconsin v Julie Thao, 2006). With an increased focus on mandatory overtime and its potential negative impact of fatigue on the quality of nursing decision making, it is important for the nurse manager to exercise caution in asking nurses to work overtime and take steps to ensure that the nurse is not so fatigued as to make patient safety at risk. The hospital, however, may be entitled to terminate the nurse for refusing mandatory overtime.15 Likewise, if the nurse is asked to float to another unit, the nurse must be sure that he/she is comfortable performing the patient care tasks which will be required on that unit. The nurse has a duty to refuse a patient assignment when he/she is not capable of giving the care that the patient requires. Failing to refuse an assignment for which the nurse is not qualified can result in injury to the patient as well as liability and licensure discipline to the nurse. In the case of Olsen v Humana, the jury awarded a patient $7 million in punitive damages against a hospital.16 The nurse responsible for the patient who was in labor had not been adequately trained in fetal monitoring.16 The nurse manager accepting a floater nurse onto his/her unit must also take the time to make sure that the nurse is comfortable with the proposed

patient care assignment and ideally will develop a checklist of minimum skills and knowledge that a floater nurse on his/her unit will be expected to possess before being assigned with patients on that unit.

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Conclusion The nurse manager needs to be aware of the institution’s policies regarding conscientious objection to patient care activities and should consult with the institution’s legal counsel if questions arise in the implementation of these policies. It is also important for the manager to exercise caution in implementing mandatory overtime and screen floater nurses who come to work on their units. By keeping these principles and pitfalls in mind, the nurse manager can help the staff deliver quality patient care and avoid potential negative consequences for their nursing staff. REFERENCES 1. Dickens BM. Reproductive health services and the law and ethics of conscientious objection. Med Law. 2001;20(2):283–293. 2. Baker TPH. Descriptive and normative ethics: conscientious objection. Nurs Manage. 1996;27(10):32DD–32FF. 3. Hyde Weldon Amendment. Consolidated Appropriations Act of 2005. Pub L No. 108-447, Division F, Title V, Section 508(d), 118 Stat 2809 (2004). 4. California ex. Rel. Lockyer v United States, No. C 05-00328JSW (March 18, 2008). 5. National Family Planning and Reproductive Health Association v Gonzales, 373 US App DC 346 (November 14, 2006). 6. Patient Self Determination Act, 42 USC Section 489, et seq (1990). 7. In re The Conservatorship of Helga M. Wanglie, No. PX91-283 (P Ct Minn Hennepin County; June 28, 1991). 8. Joint Commission on Accreditation of Healthcare Organizations. Standards, intents, and examples for managing staff requests. In: Comprehensive accreditation manual for hospitals: the official handbook. Oakbrook Terrace, IL: Joint Commission on Accreditation of Healthcare Organizations; 2000. 9. Vischer R. Conscience in context: pharmacist rights and the eroding moral marketplace. Stanford Law Pol Rev. 2006; 17:83–119. 10. Guttmacher Institute. State policies in brief, refusing to provide health services. March 1, 2008. www.guttmacher.org. Accessed March 20, 2008. 11. Curlin F, Ryan L, Chin M, Lantos J. Religion, conscience and controversial clinical practices. N Engl J Med. 2007; 356(6):593–600. 12. Bosek M. Mandatory overtime: professional duty, harms, and justice. JONA’s Healthc Law Ethics Regul. 2001;3(4):99–102. 13. American Nurses Association. Position statement. the right to accept or reject an assignment. Pulse. 1996;33(1):4–5, 11. 14. Ruderman C, Tracy CS, Bensimon CM, et al. On pandemics and the duty to care: whose duty? Who cares? BMC Med Ethics. 2006;7(1):E5. 15. Vernarec E. Just say ‘‘no’’ to mandatory overtime? RN. 2000;63(12):69–70, 72, 74. 16. Fiesta J. The Law and Liability—A Guide for Nurses. New York, NY: Wiley; 1998.

JONA’S Healthcare Law, Ethics, and Regulation / Volume 10, Number 2 / April–June 2008