Nir Eyal’s post below has teed up the issue of doctors refusing to accept patients for reasons that seem to be pretty questionable. The latest example has to do with obesity, but there are plenty of others having to do with vaccination status, sexual orientation, and the like. Sometimes these refusals can be clearly categorized as conscientious objections (religious or otherwise). And other times they are a bit fuzzier, such as when the refusals are rooted in attempts to drive changes in behavior (e.g., “get vaccinated or you can’t be my patient”) or when they stem from having inadequate staffing or equipment. But for the patient, all of these refusals can feel discriminatory. And that raises the obvious question: can doctors legally discriminate against patients? The answer: it depends. Sometimes yes, and sometimes no.
First, bear with me while I make the obligatory pitch for my book, Conflicts of Conscience in Health Care, which is now a few years old, but the issues are still very much live. In that book, I delve deeply into the question of how to balance provider conscience and patient access. In general, I argue that it is important to protect provider conscience, to a point (or points) – and those points have to do with burden on the patient and avoidance of invidious discrimination. Simplifying a great deal, the gist is that consistent refusals to provide a particular objectionable service to any patient ought be accepted, unless they cause unacceptable patient access problems. On the other hand, refusals to provide a service only to certain types of patients one finds objectionable ought not be accepted, regardless of whether they cause any patient access problems whatsoever. In other words: objection to service on moral grounds = OK; objection to patient on moral grounds = not OK. Notice that I specify moral grounds to distinguish refusals based on things like scientific or medical judgment, expertise, etc. Coming back to the real world, then, I think refusing to accept an obese patient because you think s/he is bad, or less worthy, or whatever = not OK. Refusing an obese patient because they would be better treated by someone else is a different story.
So now on to the law. Existing case law conveys the well-established default rule that initiation of the doctor-patient relationship is voluntary for both parties. But there is a catch – physicians are only free to refuse to accept a prospective patient if their reason for doing so is not prohibited by contract (e.g., with their employer or an insurance company) or by law. And there are several laws at the state and federal level that prohibit certain types of discrimination in the context of offering public accommodations – including discrimination against patients. For example, the Civil Rights Act of 1964 prohibits physicians and hospitals receiving federal funding, including Medicare and Medicaid (so read: nearly everyone), from discriminating against patients on the basis of race, color, religion, or national origin. Some states have expanded on this to cover medical personnel and health care facilities beyond the funding “hook” and to include additional protected categories. At the height of the HIV/AIDS epidemic, for example, a number of states prohibited licensees from categorically refusing to treat infected patients when the licensee possessed the skill and expertise necessary to treat the condition presented. Some states also have laws and licensing requirements applicable to the medical context that prohibit discrimination on the basis of gender, sexual orientation, marital status, disability, or medical condition. In addition, the Americans with Disabilities Act limits a physician’s ability to refuse a patient, as recognized by the Supreme Court, and the Rehabilitation Act of 1973 may also be relevant in some cases.
The bottom line is that some types of discrimination against patients are legally permitted and others aren’t. Moreover, the answer – particularly with regard to some of the newer categories beyond race and religion – might depend on what state you’re in. In some of the more progressive states, and potentially even under the ADA, discrimination based on weight might in fact be impermissible, that is if obesity is considered a disability or a medical condition (which it very plausibly could be, depending on severity). On the other hand, discrimination based on failure to vaccinate would seemingly run up against no statutory prohibition, assuming the patient’s decision to avoid vaccinations was not rooted in religious belief. Similarly, rejecting a patient for his political views, inability to pay, refusal to abide by medical advice, decision to smoke (or play contact sports?), or other characteristics not protected by law would fall completely within the realm of physician discretion. Note, however, that once the doctor-patient relationship has been established, a doctor who would choose to end that relationship must worry not only about anti-discrimination laws, but also his or her obligation not to abandon the patient.
Finally, I just want to point out that although there has been lots of discussion as to whether newsworthy physician refusals will result in a slippery slope of increasing discrimination against patients, I think those fears are largely unfounded. There are substantial legal protections in place, which are only becoming more comprehensive, not to mention a strong professional ethic driving doctors and other health care professionals to help those in need regardless of whether or not they like them or agree with their choices.
What do you think?
(NB: For the AMA’s stance on discrimination against potential patients, click here.)