“The customer is always right.” This used to be a phrase to keep the customer happy and a bit of wisdom to keep a customer returning for more of a business’ product or service. However, is this philosophy tenable within the realm of medical care? Recently, Texas State Senator Kelly Hancock filed SB 1163 that would mandate that very ideology.
At first glance, many people may see this as a reasonable sort of request. After all, if a patient needs antibiotics to help recover from an infection, it will be something that the patient wants and the doctor will generally happy to comply. Even more reasonable is if a patient is requesting life-sustaining treatment that he receive it. After all, is it not good that life be sustained at all costs since life itself is good? However, reasonable people will also agree that if a hypochondriac seeks a heart transplant when in reality he does not need one, the reasonable doctor will be obliged not to comply. The hypochondriac may think he is trying to accomplish an actual good, when in reality he is not.
What about the case in which a patient is facing imminent death who asks for extraordinary treatment that will have no physiological benefit of extending life? Is the doctor obligated to treat? In two previous articles, I argued that a physician does not have the obligation to treat in these extraordinary circumstances. Yet, here is Texas in the national spotlight again fighting against legislation that is contrary to the very idea of a Catholic conscience.
Recently, “bioethicist” Wesley J. Smith wrote an article favoring SB 1163. However, there is a problematic provision within the bill where it states: “A disagreement between the physician or professional, facility, or committee and the patient, or the person authorized to make a treatment decision for the patient under Section 166.039, over the greater weight the patient or person places on sustaining the patient ’s life than the risk of disability” (see SB 1163, pg. 2, lines 20-25). Smith goes on to argue that “The legislation forbids the current practice of ethics committees forcing patients off of wanted care.” He is right; however, what he fails to mention in his article is that if there is a dispute between the resolution of the hospital ethics committee and what the patient (or the patient’s surrogate) wants, then the doctor may be sued. SB 1163 proposes that, in addition to the Ethics Committee process, that a trial court process be added as well. Pages 4-15 of the bill deals with this process extensively. If the court rules in favor of the patient, then the doctor no longer has what is referred to as a safe harbor, meaning that the doctor is subject to civil penalties. At present, the Ethics Committee process is the mechanism that helps determine if the doctor is acting appropriately and, therefore, if they agree with the doctor, then he has “safe harbor”. If they do not agree that what the doctor is doing is ethically appropriate and the doctor proceeds with his course of treatment, then he is liable to be sued for civil penalties.
There are several problems with what is being proposed. The most morally problematic factor in this bill is that this would force a doctor that has a properly formed conscience to potentially commit an act in violation of his/her conscience. Mr. Smith needs to be forthright—the aim of the bill is to force doctors to do what the patient, or the patient’s surrogate, wants regardless of whether it is ethically appropriate or not. Smith needs to realize that this is not a situation in which the customer is always right, merely because he wants treatment. Conscience must be respected under the law. The pro-life movement has argued for conscience protection for health care workers for decades now when it comes to the issue of abortion. It is strange that Smith does not wish to protect the conscience of a doctor who has a properly formed conscience when it comes to end-of-life care. Indeed, it suggests that he has little idea what is meant by the term conscience.
As mentioned in previous articles, St. John Paul II stated the imperative the state has in protecting the conscience of the doctor: “To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised…Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane” (Evangelium Vitae no. 74).
The conscience is an important aspect of the moral agent. As the Catechism of the Catholic Church defines it, “Conscience is a judgment of reason whereby the human person recognizes the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. In all he says and does, man is obliged to follow faithfully what he knows to be just and right” (no. 1778). The conscience, then, helps one to understand if an action is morally permissible or not. Therefore, it is imperative that each person, including doctors, inform their consciences properly. When a doctor—who is a moral agent—is treating a patient, he must make a moral judgement if a course of medical treatment is the ethically responsible course before proceeding. If his conscience judges it to be morally licit, he should then proceed. If not, then he should avoid it.
The issue of SB 1163 and conscience becomes even more troubling when one looks at the case of Marlise Munoz in Texas. In this particular case, Mrs. Munoz was pregnant and in a comatose state. She suffered a pulmonary embolism and never woke up. It was obvious that she suffered from lack of oxygen from the embolism and it was feared that her unborn child might have suffered from oxygen deprivation as well. Her husband, being an Emergency Medical Technician, believed she had met the criteria of brain death and wanted her taken off of life support, yet the physician and the hospital kept her on life support despite his wishes because there were two patients at stake here (the mother and the unborn child) and the law maintained that a pregnant woman cannot be denied life sustaining treatment under Texas law. Here, conscientious doctors disagreed with the patient’s surrogate on the manner of treatment and were looking to preserve the life of the mother in order to preserve the life of the unborn child. Yet, a court forced the doctors to ultimately deny the treatment contrary to the law. Tragically, both mother and unborn child died because of the court order. Interestingly, this issue does not seem to worry Mr. Smith or the other proponents of SB 1163.
SB 1163 proposes to force those doctors with a properly formed conscience into a morally problematic dilemma: to either follow their conscience and not provide care if it provides no benefit to the patient, even if this is contrary to the patient’s wishes, or violate their conscience and provide what the patient wants. It has become obvious that SB 1163 is not a bill that favors the doctor with the properly formed conscience. Again, the idea of unbalanced patient autonomy has become the end-of-life philosophy de jour with some pro-life leaders and organizations. Unfortunately, if this bill is enacted, it may cause a chilling effect on proper end-of-life care.