The refusal of care


The refusal of care

May a healthcare professional say no to treating Ebola? It’s a thorny issue that has preoccupied many healthcare professionals in recent months. Daniel Meier, an associate with law firm Benesch, Friedlander, Coplan & Aronoff, gives his professional opinion.

May a licensed healthcare professional refuse to treat a patient? Healthcare providers have legal, ethical and professional duties to address a patient’s needs that fall within the provider’s scope of practice. However, are doctors, and other healthcare personnel, required to treat any and all patients, even if doing so might cost them their lives? While this question has arisen during the recent Ebola outbreak, it is not a new issue and has been previously addressed.


The history of refusing to treat

During the early HIV/AIDS era in the 1980s, when there was little known about the disease, some physicians and other healthcare workers refused to treat HIV-infected patients. In 1992 the American Medical Association (AMA) declared in an ethics opinion that: “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 for HIV. Persons who are seropositive should not be subjected to discrimination based on fear or prejudice”—AMA Opinion 9.131 (March 992, updated June 1996 and June 1998).

Similarly, the American Dental Association stated in its Principles of Ethics and Code of Professional Conduct that: “A dentist has a general obligation to provide care to those in need. A decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive based solely on that fact is unethical.”—American Dental Association, ADA Principles of Ethics and Code of Professional Conduct III §4.A.1 (2012).

During the recent Ebola outbreak, healthcare personnel were once again refusing to treat infected patients. Is this acceptable?


The right to be treated

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires that any patients who present at an emergency department must be stabilized and treated in a non-discriminatory manner, regardless of their insurance status, ability to pay, national origin, race, creed or color (42 USC §1395dd).

Hospitals may not transfer or discharge patients needing emergency treatment except with the informed consent (itself a legal doctrine) or stabilization of the patient, or when their condition requires transfer to a hospital better equipped to administer the treatment.

Since Ebola qualifies as an emergency medical condition, patients with the disease would fall under EMTALA, as reported in the November 2014 CMS Bulletin. Upon arrival at the emergency department, even if Ebola is suspected, EMTALA would require the patient be medically screened and treated until the emergency condition is resolved or stabilized. Hospitals lacking the ability to provide care to such patients may transfer the patients to another facility under strict transfer guidelines.

Individual providers and hospitals both have a legal obligation to comply with EMTALA. If found in violation of the act, hospitals and healthcare providers may lose their Medicare provider agreement and be fined up to $50,000 per violation as well as be subject to any lawsuits that may arise.


Pre-existing or contractual relationships

Aside from EMTALA, which governs treatment of patients in emergent situations within emergency facilities, US law generally allows healthcare providers to accept or decline patients at will. There are a few exceptions to this rule. First, many hospital medical staff bylaws, state medical board licensing and discipline requirements and contractual arrangements require physicians to comply with AMA ethics guidelines. These ethics guidelines may well require a physician to provide care to an Ebola patient, such as the AMA opinion cited above. Additionally, managed care agreements may also require an assessment of the patient.

A second exception concerns a pre-existing provider-patient relationship. Breaking this relationship without transferring care to another provider constitutes “abandonment”. For example a patient with whom a healthcare professional has previously established a professional relationship may present in the professional’s office with complaints of fever, muscle ache and abdominal pain. That patient may also have a history showing that he or she recently travelled to an Ebola hot spot or area with a high risk of Ebola.

As with any other patient, the provider must provide treatment and/or refer them to another source for treatment. Otherwise, the healthcare professional is at risk for abandonment of the patient.

However, when it’s a patient with whom the healthcare professional has no pre-existing care relationship, and there is no other duty under any other basis (ie, he or she is not an ER physician, or in any other way obligated to treat the patient), then the question becomes; is the healthcare professional qualified to treat the patient. In most situations, the professional typically has the legal right to decide whether to accept the patient or not.

Third, the Americans with Disabilities Act of 1991 prohibits providers from refusing care to patients on the basis of disability.

Last, states may have their own laws outlining when providers can and cannot refuse to treat certain patients. For example, the Rhode Island Department of Health recently released a statement providing that: “In Rhode Island, licensed healthcare professionals in active practice are obligated to treat and/or care for Ebola patients, while minimizing the risk of Ebola transmission to self and others.” The statement notes that failure to comply is a potential breach of the state’s healthcare licensing laws and could result in sanctions.


Personal safety

Healthcare providers also operate along ethical principles concerning their duty to treat. The general guideline acts to ensure that the provider does not feel threatened for his or her personal safety. In fact, the preparedness protocols that were designed by the Centers for Disease Control and Prevention (CDC) present a mission to care for those in need, but have an underlying theme of safety as the number one priority.

The protocols emphasize that all healthcare workers involved in the care of Ebola patients: (i) must have received repeated training and demonstrated competency in performing all Ebola-related infection control practices and procedures; (ii) should have no skin exposed; and (iii) must have an onsite manager at all times overseeing the safe care of Ebola patients in a facility.

Notably, the CDC has also stated that the risk of transmission of Ebola, in and of itself, does not provide a basis for the relaxation of a health professional’s duty to help a patient as the risk of disease transmission is understood and can be readily mitigated.

Ultimately, the decision to treat an Ebola patient is fact-dependent, based on the overall safety of the healthcare professional. For example, a healthcare worker may be situated in a rural area without proper equipment and without any safety mechanisms in place. If the professional is confronted with a patient diagnosed with Ebola and in the active stages of the disease, the ethical concerns may be trumped by treatment concerns. Similarly, a leading medical ethicist, Dr Joseph J. Fins, has stated that a medical team should not try to resuscitate an Ebola patient whose heart has stopped beating. Dr Finns explained that the risks of cardiopulmonary resuscitation efforts are too great for healthcare workers and even for some Ebola patients whose heartbeat is restored.

On the other hand, a healthcare professional may work in a health system that is ripe with safety protocols and mechanisms available. If that professional is confronted with a patient diagnosed with Ebola, the concern for personal safety may not outweigh the ethical duty to treat. Ultimately, it will be a decision for the healthcare professional to make concerning his or her personal safety.


National guidelines

Conflicting laws, ethical guidelines and varying circumstances have created great uncertainty about the duty to treat. In fact, the decision whether the duty to treat trumps safety concerns has sparked a thorny debate at hospitals across the country along with a call for national guidelines, as reported in The Wall Street Journal in October 2014. 

US, Ebola, Risk Management, EMTALA