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HHS Conscience Rule -- Impacts not only Reproductive Choice but also Medical Futility

Posted Oct 19 2008 7:53pm
In August, the U.S. Department of Health and Human Services proposed regulations that would require health care entities that receive federal funding to certify in writing that none of their employees are required to administer medical services they find objectionable. Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law,73 Fed. Reg. 50,274 (Aug. 26, 2008) [ GPO PDF ].

Interestingly, some of the several hundred comments that were submitted by the recent deadline suggest the impact of such a regulation on medical futility. A letter comment from Dallas neonatologist/pediatrician Dr. Roy Heyne states in part:

The proposed federal regulations are an important step toward ensuring that doctors, nurses and other medical personnel are not forced to violate their most deeply held moral and ethical convictions. . . . I think institutions likely vary in how they deal with individual situations involving a conflict of conscience . . . .

In Texas, a noteworthy area, where this issue may arise, is that of medical “futility.” According to a State statute passed several years ago, care may be withheld in futile cases as long as “due process” is followed. One hospital policy dealing with this difficult situation does provide explicit protection of conscience as follows: a) no medical/dental staff or housestaff member is to be forced to withhold or withdraw life support when doing so would be contrary to his/her conscience or professional judgment; and b) conversely, no medical/dental staff or housestaff member has a duty to provide useless or futile treatment. Where a conflict exists, arrangements may be made to transfer the care of the patient to an alternate provider. Presumably nurses and other care team members would be accommodated similarly to physicians, though this is not as clearly spelled out in policy and might be influenced by staffing logistics. Since the futility statute also allows withdrawal of artificial feeding and hydration (considered “treatment,” rather than basic care), nursing is particularly vulnerable to potential conflicts of conscience. Whether other health care facilities in Texas, not to mention outside the state, provide such written or unwritten protections, I cannot say.

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