Referral vs Transfer of Care: Ethical Options When Values Differ

Abstract

Conscientious objection (CO) in medicine is where a healthcare professional (HCP) firmly opposes, with an expression of reasoned disapproval, a legally available procedure or treatment that is proscribed by one’s conscience. While there remains controversy regarding whether conscientious objection should be a part of medicine, even among those who support CO state that if the HCP does not provide the requested service such as abortion, physician assisted suicide, etc., there is an obligation on the part of the objecting HCP to refer to someone who will provide it. However, referral makes the referring HCP complicit in the act the referrer believes to be immoral since the referrer has a duty to know that the HCP who will accept the patient is not only able to do the procedure but is competent in its performance as well. The referrer thus facilitates the process. Since one has a moral obligation to limit complicity with immoral actions when it cannot be avoided, the alternative is to allow the patient to transfer care to another when the patient has made the autonomous decision to reject the advice of the HCP.

Introduction

Conscientious objection (CO) in medicine is where a healthcare professional (HCP) firmly opposes, with an expression of reasoned disapproval, a legally available procedure or treatment that is proscribed by one’s conscience. Conscience as defined by Sulmasy (2008, 138) is an act of the will, an assent to truth to act morally, and a fundamental commitment to act morally. The Catechism of the Catholic Church (CCC) states: “Conscience is a judgment of reason whereby the human person recognizes the moral quality of a concrete act” that is going to be performed, is in the process of performing, or has been performed. We are “obliged to follow faithfully” what we know to be “just and right.” It is by this judgment that the conscience “perceives and recognizes the prescriptions of the divine law” (CCC 2021, 1778).

To object is to bring forth a formal, reasoned declaration of disapproval (Jones-Nosacek 2021, 4). CO occurs when there are disagreements with externally placed obligations where medical knowledge is being used for patient well-being, not disease (Sulmasy 2008, 147). Initially, CO referred to opposition to abortion as a reason for legal protection against institutions and individuals being forced to being involved in the procedure. Over time, CO has expanded to include sterilization, contraception, in vitro fertilization, stem cell research, end of life issues (Sawicki 2018), and LGBTQ+ issues though legal protection for healthcare professionals and institutions regarding treatment of individuals identified as transgendered is more open to litigation, with courts both allowing CO (North Dakota v Burrell 2021; Franciscan Alliance v Becerra 2021) and opposing (Minton v Dignity Health 2019).

While there remains controversy regarding whether conscientious objection should be a part of medicine (Fiala and Arthur 2014; Fiala and Arthur 2017; Savulescu 2006; Savulescu and Schuklenk 2017; Schuklenk 2018; Stahl and Emmanuel 2017), many of those who support CO state that if the HCP does not provide the requested procedure such as abortion, physician assisted suicide, etc., there is an obligation on the part of the objecting HCP to refer to someone who will provide that service (ACOG 2007, 5; Wicclair 2011, 114; Cowley 2016, 362). The argument is that only those performing the objectionable action are morally responsible for what occurs. They argue that the referring physician is not responsible for the free actions of others (Cowley 2016, 362). However, others would argue that it is not true, that by facilitating the objectionable action by referral, one is morally culpable (Murphy 2016).

This paper will demonstrate the key differences between referral and transfer of care, legally and morally, from the viewpoint of limiting evil as opposed to determining the level of cooperation with evil since how much one can be involved can vary on the situation. It will then explain why obligating referral is a legitimate concern for those professionals who conscientiously object, arguing that transfer of care is a better solution that respects the CO and autonomy of the HCP.

The Difference Between Referral and Transfer of Care

Often the terms “referral” and “transfer of care” are used interchangeably (AAFP, 2017). In the American Academy of Pediatrics’ (AAP) Committee on Bioethics paper on CO, they state that it is permissible for a pediatrician to transfer care, then in the next sentence state that a patient can be harmed by lack of referral (Committee on Bioethics, 2009). Legally and morally, though, there is a difference.

Referral occurs whenever, in the referring physician’s opinion, it is in the patient’s best interests to receive proper care from another HCP, usually due to the necessary treatment or procedure being beyond the scope of the referring physician’s expertise or the institution in which the physician practices. It can merely be that the referring physician chooses not to practice in that particular area (Edwards 2009, Referral). For example, an obstetrician/gynecologist could decide to practice gynecology but not obstetrics. It is the referring physician’s duty to make a referral when these situations occur (Edwards, Duty to Refer, 2009).

The referral can be temporary or permanent (AAFP 2007). Referral can be for specialty care, such as surgery or counseling. In either case, the referring physician can continue responsibility for general medical care (AAFP 2007; Edwards 2009, Referral). However, the parameters and responsibility of care should be made clear (Edwards 2009, Referral) to avoid misunderstandings or miscommunication resulting in patient injury. Once the referral has been made and acceptance by the receiving physician has been ensured, the responsibility for the patient’s care for the condition referred shifts to the receiving physician (AAFP 2007; Edwards 2009, Referral) which “generally relieves the original physician of responsibility for the patient’s care and reduces his or her liability” (Edwards, Liability for Improperly Managed Referrals, 2009).

The referral must be acceptable to all three parties: referring physician, patient, and receiving HCP. If not, there should be an attempt by the referring physician to find another HCP (Edwards, Liability for Improperly Managed Referrals, 2009). The referring physician has a limited duty to ensure the competence of the receiving HCP, mainly a duty to determine if the HCP provides the type of care requested (Edwards, Referral, 2009). The American Medical Society (AMA) states that physicians should only refer to HCPs with the appropriate skills and licensing (Code of Ethics 1.2.3). The referring physician can be held liable if it was known or if it should have been known that the receiving physician was incompetent or impaired (Minot, 2018). This duty extends even to the physician referring to non-physicians for care, such as physical therapy or counseling (Edwards, Duty to Refer to Nonphysician, 2009). While the referring physician cannot force another HCP or an institution to receive a patient, the referring physician does have the duty to find care for the patient, pursuing all options until a place is found (Edwards, The Duty to Find Care, 2009).

While the patient has a right to refuse the referral, this does not relieve the referring physician of finding an alternate to provide the medically necessary care. To refer against the patient’s wishes and then withdraw care is abandonment. The referring physician needs to determine the cause for the refusal (insurance problems, not wanting to see a particular physician, not wanting to change physicians, etc.). If the patient continues to refuse, the physician should continue to explain the reasons why the referral is necessary. In the end, the “patient should understand that after making appropriate care available, the attending physician will withdraw from the case” (Edwards, Liability for Improperly Managed Referrals, 2009) and terminate care.

Transfer of care (AAFP 2017), also known as termination of care (AMA E-1.1.5, 2021; Edwards, Physician-Initiated Termination of Care, Patient-Initiated Termination of Care, 2009), is where the patient exercises the right to informed refusal of the physician’s advice. By doing so, the physician is absolved of liability as long as the patient understands the need for the recommended treatment and the consequences of refusing that treatment (Edwards, Patient-Initiated Termination of Care, 2009). It can be either patient or physician-initiated and/or temporary or permanent. It can be complete termination of the patient–physician relationship or only partial based on the desires of the patient and/or physician (AAFP 2017).

Therefore, in referral, the physician takes a more active role in working with the patient to find who is, in the physician’s opinion, the HCP to provide proper care. While in transfer of care, the responsibility falls on the patient since it is the patient who is refusing to follow the physician’s counsel. If patient-initiated, then the only responsibility the physician has is to make some effort to determine that the patient is knowingly forgoing offered care as opposed to acting out of ignorance or misunderstanding and/or has found another physician (Edwards, Patient-Initiated Termination of Care, 2009). In other words, the physician is responsible to make sure that the patient is making an informed refusal. The physician can, but is not obligated to, offer to find another physician who will provide what the transferring physician deems to be “proper care” (Edwards, Patient-Initiated Termination of Care, 2009). Referrals are more physician-driven while transfer of care is patient-driven.

Abandonment occurs when the patient–physician relationship ends in such a way that the patient is denied necessary medical care. Liability is significant when the patient is injured. Abandonment can be intentional, such as a refusal to see a patient because of owing money, or inadvertent, such as a mix up in the call schedule. Intentional abandonment opens the physician up to punitive damages (Edwards, Abandonment, 2009). It is important that a physician continue to provide care, especially in an emergency situation (Code of Ethics 2021, 1.1.1; Sulmasy 2008, 145; Wicclair 2011, 99) which is defined as imminent risk of actual illness or injury (Sulmasy 2008, 145).

Complicity

Those who insist that conscientious objectors must refer state that assisting patients by giving the names and contact information of HCPs who provide the objected service are not complicit (Wicclair 2011, 37). The American College of Obstetricians and Gynecologists (ACOG) in their position on CO state that “it would be odd or absurd to say ‘I would have a guilty conscience if she did ‘x’’” (ACOG 2007, 2). One is not responsible for the subsequent, autonomous decision of the patient (Wicclair 2011, 37).

It is true that, living in a multicultural society, it is impossible to avoid some level of complicity with evil since we need to cooperate with each other to live peaceably (Sulmasy 2008, 141). We are always to some extent materially involved with ideas we may disagree with, even considering the action to be evil, and must come to terms with it. We can make mistakes, individually and collectively. We pay taxes for unjust wars such as those who had to pay income taxes that, in part, supported the Vietnam War. We may work for institutions that either support or are opposed to abortion, depending on your position (Jones-Nosacek 2020, 26). Or as Engelhardt says, we determine the amount of evil we are willing to tolerate (Engelhardt, 1996, 16).

Moral complicity is complex and context dependent to determine whether the action is acceptable or unacceptable (Wicclair 2011, 41). It is also known as cooperation with evil. It has two parts: formal or material. Formal cooperation with evil “occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act…or a sharing in the immoral intention of the person committing it” (John Paul II, 1995, #74). Material cooperation occurs when the one does not approve but rather makes a contribution that is related to the immoral act itself.

While one may never formally cooperate, that is, commit an evil act even for a great good, material cooperation may be allowed. To decide if one can materially cooperate requires prudence–practical wisdom regarding imperfect choices. If too strict, then one becomes scrupulous and finds it impossible to act. If too lax, then one may allow great evil (Jones-Nosacek 2020, 26-27). We need to find a mean which is a matter of conscience, though people of good will can differ on where that is (Sulmasy 2008, 141). To justify material cooperation, one needs to judge the following criteria: The first is how necessary is one’s cooperation for the act? Will the act occur anyway? Second, how close is the action to the act, not only space and time but also in the chain of events? The closer the relationship, the more complicit and the greater the necessary justification. Third, is duress involved such as loss of livelihood or threat of violence? The greater the duress, the less complicit. Next is how likely is this to become habitual? Is this a regular occurrence? Then there is the potential for scandal. Will this cause another to participate in the immoral action in the sense that others viewing the action will think, “Well, if HE thinks it’s OK…”? Finally, will there be a proportionate moral good that will occur because of one’s material cooperation? (Jones-Nosacek 2020, 27; Sulmasy 2008, 141).

Thus, material cooperation can be broken down further. If the cooperator’s act is essential for the other person (known as the principal agent) to do an immoral act, that is, immediate material cooperation. It is allowable only under extreme coercive circumstances such as a threat to one’s life. If the act only makes possible the immoral act but is not essential to it, then the act is mediate. This can be broken down into how closely (proximate) or distant (remote) the cooperator’s act allows the principal agent to do it. The further away in space, time, or most importantly, chain of events, the more remote the cooperation. No matter what the level of cooperation, one still needs to be able to justify that the amount of good achieved is greater than the amount of evil involved by saying what can be done. This is due to obligations derived from natural law such as preserving life or living in society as well as obligations of charity for love of God, oneself, and one’s neighbor.

Minimizing or avoiding complicity is recognized within the medical profession. For example, regarding the death penalty, which the CCC has declared to be inadmissible (Bordoni, 2018; CCC 2021, 2267), the AMA not only bans direct participation in the execution itself, but also any action that would facilitate it such as “assist, supervise, or contribute” to cause another to be able to perform the execution. Even determining the competency of the condemned prisoner or treating the prisoner to become competent so that the execution can be carried out is forbidden (Code of Ethics 2021, 9.7.3).

Being complicit in the torture of prisoners is also condemned. Not only should physicians not participate but they should also not be indirectly involved in any way that would facilitate it and actively work to change the situation where torture is being performed or its potential (Code of Ethics 2021, 9.7.5). When it was found out that military doctors participated in or turned a blind eye to the torture of prisoners after the attacks on 9/11, it was condemned in medical journals (How complicit are doctors.. 2004; Lifton, 2004).

In both examples, one could say that the HCPs involved were not responsible for the free actions of others. Yet, it is not just being involved in the death penalty and torture directly. Indirect activity is considered complicit. There is an instinctive reaction against it, a sense of uncleanliness and taint. Ultimately, it is the natural response of a person doing what is fundamentally opposed to one’s nature and dignity (Murphy 2016).

Wicclair (2011, 109) tries to make the argument that there is a difference between “actively facilitating” transfer and referring a patient to someone who is “willing and able to provide it.” Yet, he does not state how one differs from the other since in both cases, he argues that the physician is obligated to find that person. If a physician is taking the time and effort to find that someone who can and will do it, then that is making it easier for the patient to get the procedure or treatment that the physician objects to. That is, in both instances, the physician is formally cooperating in the process.

Appearances and a sense of scandal are at stake as well. It must not be so bad, so evil, if one refers the patient to someone else who will perform the particular treatment or procedure that one opposes for reason of conscience. Even Wicclair agrees (Wicclair 2011, 41).

To refer a patient to someone who is performing an action the referrer knows to be immoral therefore makes the referrer complicit in the action of the accepting physician even if the referring physician does not explicitly request it or only does so because it is required by law (NCBC ethicist 2015). It is formal cooperation. It is more than “just” giving a name. The referring physician has a duty to know that the accepting physician is not only able to do the procedure but has the appropriate skills to perform it competently. The referring physician facilitates the process. It implies approval. Even those who reject conscientious objection in medicine concede this point (Savulescu and Schuklenk 2017, 166).

This means that the intent of the referring physician is to will that the immoral treatment or procedure occur (NCBC 2015) by making sure the patient is being sent to someone who can perform the treatment or procedure. The intent can be explicit as in the referrer agreeing with the procedure or treatment being performed, but it can also be implicit. The referrer can say that it is being done because it is a legal procedure, it is the patient’s autonomous decision, or the need to follow the law. It does not relieve the referrer of being complicit by finding someone who will do the immoral act.

It also goes against the Ethical and Religious Directives for Healthcare Services (ERDS). They state that “a Catholic institution must ensure that neither its administrators nor its employees will manage, carry out, assist in carrying out, make its facilities available for, make referrals for, or benefit from the revenue generated by immoral procedures” especially when collaborating with an entity that does them United States Conference of Catholic Bishops (2018) (ERDS #73, 2018).

When Values Differ

What is the role of the physician when a patient requests a treatment that the physician objects to? Consider this example.

Sally makes an appointment to see her primary care physician (PCP) because she has a cold. In the past, doctors “have always” given her a prescription for an antibiotic and she feels better a couple of days later. The PCP examines her and respectfully tells her that she has a viral infection, recommending several treatments to ease her symptoms. She rejects the advice and insists on a prescription for antibiotics, or the PCP should find someone who will.

We would not expect the PCP who refuses to give antibiotics to someone with a viral infection to find someone who will. The patient is free to continue to insist and then reject the physician’s recommendation, but not to insist on referral to someone who will accede to her demands. The PCP may give the name of several colleagues but not necessarily ones that will agree with her.

The argument could be made that the PCP is just following the science. That is true. Antibiotics do not work for viral infections. The AMA however states that medicine is, at its heart, “fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering” (Code of Ethics, 1.1.1). That means that even the above scenario is a moral activity. The PCP values the scientific evidence and the need to tell the truth over patient autonomy. The PCP values these principles over his or her own well-being if this encounter results in a low survey score and a possible lower bonus or values that over the desire to just get it over with and not keep other patients waiting. Sally, however, values her autonomy and her (erroneous) experience regarding the use of antibiotics over the trust she has with her PCP to decide what treatment is in her best interests and the scientific evidence. It boils down to a difference in values and morals between Sally and her PCP.

The practice of medicine is “where in the service to life the voice of conscience is daily invoked” (Samaritanus Bonus, #9, 2020). Conscientious objectors do not reject certain values because of private religious conviction, but because they reasonably assert the “inalienable right essential to the common good of the whole society” (Samaritanus Bonus, #9, 2020). They think that in fact these values are “the very foundations of human dignity and human coexistence rooted in justice” (Samaritanus Bonus, #9, 2020). They are making decisions not merely to avoid personal feelings of moral distress but because they believe that they are acting in the patient’s best interests, even if the patient disagrees. To cooperate would be to commit an injustice against the dignity of the human being (John Paul II 1995, #74).

CO is asserted not for physiological disease but disorders of patient well-being. There is nothing physiologically different between a normal wanted or unwanted pregnancy. Similarly, the reproductive organs are functioning normally according to what has been genetically determined in gender dysphoria or in requests for contraceptives. In Oregon, the top four reasons for physician-assisted suicide are all value-driven: loss of enjoyment of life, loss of autonomy and/or dignity, and being a burden (Oregon Health Authority 2021, 12)

Therefore, we must find a way to respect the autonomy of both physician and patient when there is a disagreement of values, no matter what those values may be. If referring makes physicians complicit because they are forced to find someone who perform what they believe, based on their values, a treatment or procedure not in the patient’s best interests, and the patient continues to reject the advice, then this falls under patient-initiated termination of care. The patient needs to transfer care either temporarily or permanently, partially or completely, to another who will do what the patient requests. A physician can (emphasis mine) give the patient a generic list of names (Edwards, Patient-termination, 2009) but is under no obligation to do so or even find a physician compatible with the patient’s request. Even the AMA recognizes that a conscientious objector might decline to refer (Code of Ethics, 1.1.7f). Allowing the patient to transfer care to another respects the autonomy of both patient and physician.

When a physician gives information, such as the diagnosis of pregnancy or a terminal disease, the physician’s responsibility/cooperation is remote mediate cooperation in that particular patient’s decision to have an abortion or commit suicide using another physician’s help. While this information contributes to the ability of the patient to obtain the objectionable treatment or procedures, giving the patient this information is justifiable regarding their condition, even if the physician suspects that it will be used in a manner to which the physician opposes because obtaining the information is also necessary for the objecting physician’s continued care of the condition. It makes possible the act but is not immediately necessary in the performance of the act as it would be assisting in the procedure or the administration of the medication. Only the most scrupulous would say this is causing scandal.

In an emergency, medical care must be provided (Sulmasy, 2008, 146; Wicclair, 2011, 99; AMA 1.1.1), but there may not always be a bright line as to when a situation is emergent (Fiala and Arthur, 2014, 3; Wicclair, 2011, 99) which complicates matters. The treatment must have a high level of evidence proof that there is no other alternative (Sulmasy, 2008, 146). Under the principle double effect, the physician can use treatments or perform procedures to stabilize the patient, where there is an intended outcome that is good, though at the same time another outcome that is anticipated but not intended when there is not a less problematic alternative available, and the good effect cannot be the result of the bad effect as long as the treatment or procedure is morally good or neutral. However, even in an emergency, the patient has the autonomous right to make an informed refusal of what treatment is offered.

To not abandon the patient, the physician can offer to provide ongoing symptomatic care that does not cause a problem for conscience (Code of Ethics, 1.1.7g; Sulmasy 2008, 146) or formally terminate the relationship (Code of Ethics, 1.1.7g).

At all times, the conscientious objector should treat the patient with respect based on their common dignity as human persons. While ACOG states that objectors should not argue or advocate their position (ACOG 2007, 5), it would be difficult for patients not to infer by the physician’s refusal disapproval of their decision (Jones-Nosacek 2020, 31). Physicians are allowed to persuade a patient through the merit of reason (Beauchamp and Childress 2019, 137). As part of informed consent, physicians have a duty to make a recommendation and explain to the patient the reasoning (Beauchamp and Childress 2019, 122) behind one’s objection to a procedure, even if legal, even if supported by certain professional organizations. The patient has a right to understand that “the refusal is not being done in an arbitrary or ad hominem manner, just as in any other circumstance where the physician and patient disagree on what is the proper treatment” (Jones-Nosacek 2020, 31-32).

Persuasion is allowed when it is an appeal to reason as opposed to coercion or an appeal to emotion (Beauchamp and Childress 2019, 137). Physicians are allowed to make recommendations (Beauchamp and Childress 2019, 122), framing them in a way that is gives a sufficient amount of information to lead a patient to act (Beauchamp and Childress 2019, 137; Simkulet 2018, 538). This does not mean giving information in a purposely misleading manner, such as lying, withholding information or misleading by exaggeration (Beauchamp and Childress 2019, 137). Otherwise, there is the impression that one option is as good as another. Appropriate framing is consistent with gaining informed consent (or refusal) when it helps the patient to understand options, risks, and benefits (Simkulet 2018, 537-538). A physician’s recommendations are judgments based on a fundamental understanding of the nature and dignity of the human person to do what the physician believes to be in the patient’s best interests.

Patients deserve the truth, even the uncomfortable ones (Jones-Nosacek 2020, 30), though the need for disclosure must be balanced with the patient’s potential and actual responses (Beauchamp and Childress 2019, 329). It builds trust between the physician and the patient. A patient who does not trust that the physician is telling the truth is unlikely to consider alternatives. And this may be the only time that alternatives are discussed. For those who hold religious values, to not tell patients the truth goes against the commandment “Thou shalt not lie” (Jones-Nosacek 2020, 30).

The question then becomes what is truth? Should physicians be obligated to tell a patient with gender dysphoria that the recommended treatment is at the lowest level of evidence and that therefore, there is a high likelihood it will change (Hruz 2020, 37)? Or that the risk of suicide and the need for psychiatric care remains elevated with treatment for gender dysphoria even in progressive, secular countries such as Sweden (Dhejne et al. 2011)?

All of this should be done in the setting of a respectful dialog between two (or more) autonomous persons. There should be sufficient information given that both understand from the other’s point of view. The terms used should have mutually agreed upon meanings. There should be no coercion or deliberate manipulation. They should be willing and able to empathize with each other, equally willing to present and critique claims. Any power differential should be neutralized so that there is no impact on the final decision. Both should feel free to openly explain their goals and intentions. Finally, there should be sufficient time for discussion (Walker 2019).

The goal is to engage in a process of decision-making that will lead to an unforced consensus. There must be a general agreement that the best decision has been reached for the parties involved. It results in a feeling of “oughtness” or “shouldness” that guides the subsequent actions (Walker 2019). It may be that the decision leads to mutually collaborating in further treatment. Or it may result in recognizing that their unreconcilable differences lead to the patient transferring care.

The physician should not actively block the patient’s request for transfer of care. Patients have a legal right to their own personal health information to use as they please (US Department of Health and Human Services, 2020), including their prescriptions. The physician can allow the transfer of the records to the accepting physician or institution of the patient’s choosing without stating where the patient can go. Patients also have a right to their persons. Therefore, a generic transfer of care policy must be formed for when, for a variety of reasons, a procedure or treatment cannot be done at a facility, that can be invoked in a nondiscriminatory manner. Where the patient goes is then up to the patient. The patient may even be given a generic list based on the institutions or specialists in the patient’s geographic area which may include those who will agree with the objector’s position (NCBC ethicist 2015). Cooperation remains remote and mediates because the physician is only providing medical information due to the patient which makes possible the act but is not essential to it. Patients have a moral right as autonomous agents to transfer care, no matter how strongly the physician may disagree with that decision. Otherwise, the patient is a mere object under the control of the physician (Jones-Nosacek 2020, 33).

Wicclair is wrong when he says that one of the reasons a conscientious objector refuses to refer is to prevent the patient from engaging in a particular behavior considered to be immoral (Wicclair 2011, 109-110). Granted, the refusal to refer may impede the patient’s ability to get the requested service and is an inconvenience for the patient, but no more than in any other case where the patient rejects the physician’s advice.

The argument given is that these are legally and professionally accepted treatments and procedures (Wicclair 2011, 109). This ignores the fact that there are professional entities such as the Academy of Pediatrics, the American Association of Prolife Obstetricians and Gynecologists, the Christian Medical and Dental Association, and the Catholic Medical Association who disagree that these are professionally acceptable, even if they do not totally agree with each other. Among the rank and file, 44% of AMA members support restrictions on abortion (Lawrence and Curlin 2009, 1279) and 38% of all physicians are against physician-assisted suicide (Hetzler et al. 2019, 580).

Wicclair and ACOG argue that physicians are gatekeepers and that not to refer is an imposition of the conscientious objector’s values on the patient and an exploitation of their power over the patient (Wicclair 2011, 108; ACOG 2007, 1205). This is not true. Patients are still allowed to make their autonomous choices and the freedom to choose another HCP for their desired service or procedure. This occurs whenever a physician refuses to accede to a patient’s requests. Physicians are not purveyors of services. They are professionals making medical judgments.

Conclusion

It is a fundamental principle to do good and avoid evil. Gandhi once said, “Non-cooperation with evil is as much a duty as is cooperation with good” (Gandhian Institutes 2021). Physicians who refuse to refer are refusing not because it suits their self-interest, but because they believe that they are following their fiduciary duty to act in the patient’s best interests, even if the patient disagrees. Physicians are obligated to do so even if it means not following the law (John Paul II 1995, #74; NCBC 2015)

At the same time, patients are allowed their autonomous rights to make an informed refusal and reject the advice given. They can be reminded of that fact. “(T)he patient is an independent moral agent who is free to decide where and from whom he or she will seek care” (NCBC ethicist 2015). Transfer of care respects the autonomous rights of both patient and physician when after a respectful dialog, the patient makes an informed refusal, and the physician understands the obligation to provide care in an emergency.

Unfortunately, delay is inevitable when care is transferred. Conscientious objectors should offer to continue compassionate, ethical, quality care to the patient to limit the potential of physical harm caused by the patient’s decision. There needs to be a generic policy in place for whenever a patient makes an informed refusal to reject the physician’s advice, no matter what the reason. This policy will facilitate the transfer so it can be accomplished as smoothly as possible to minimize harm as well. Especially for Catholic physicians, we should be reminded that we care for others as Jesus did, even when they rejected His advice, even if they were following the wrong road like the disciples on the road to Emmaus.

If medicine is fundamentally a moral activity as the AMA states (Code of Ethics, 1.1.1), then we must ask whether for respect of conscience are we willing to be inconvenienced at times for the other’s sake (Sulmasy 2008, 146). Physicians should not be treated as means to an end. To compel a significant minority of physicians to either become complicit in evil or leave the practice of medicine would result in medicine becoming no longer a moral activity with physicians as mere service providers under the paternalism of external forces. This right to not force physicians to refer but to allow a mechanism for transfer of care should be respected and enshrined in law preserves and respects the interests of both physician and patient.

Biographical Note

Cynthia Jones-Nosacek, MA, MD, is a retired family physician after practicing for more than 35 years the full range of medicine from obstetrics to hospice, as well as inpatient, outpatient, and nursing home care. She received her medical degree from Loyola-Stritch School of Medicine and did her residency at Resurrection Hospital in Chicago. She is now working as a bioethicist, having received her Master of Arts degree from Ohio State University. She splits her time between the US and mission work in Uganda while serving as president of the Milwaukee Guild of the CMA.

ORCID iD

Cynthia Jones-Nosacek, MD https://orcid.org/0000-0001-5129-8626