Physician autonomy in crisis: examining the right to refuse commitment

KEYWORDS:

• Crisis, doctor expectations
• duty of denunciation
• ethical dilemmas
• international law
• patriotism in healthcare crisis
• right to life

1. Introduction

In times of crisis, whether it be war, an epidemic, or a natural disaster, societal expectations towards physicians often become so high that they sometimes become ‘unreasonable’ [1,2]. Physicians may simply have to ‘sacrifice’ themselves for the community [1,2]. Since its establishment in 1847, the American medical association (AMA) defined the duty of physicians in times of crisis as follows: ‘when an epidemic prevails, a physician must continue his labors without regard to the risk to his own health’ [3]. In other words, physicians should commit themselves even at the risk of their own lives. Nevertheless, does a physician have the right to withdraw? Does he legally have the freedom not to die?

2. The issue of consent

By swearing the Hippocratic Oath to become physicians, the latter have implicitly expressed their consent to accept the social and financial privileges of this profession, but also its inconveniences and risks [4,5]. This constitutes a clause of the social contract and a reciprocity towards the community that few professionals assume in times of crisis [4,5].

Furthermore, the relationships between physicians and hospitals are governed by a contractual mechanism whereby physicians, as ‘employees’, are expected to report to their positions even during critical periods to potentially provide care to individuals with highly infectious diseases [3,4]. The obligations of the physician would be discussed on a case-by-case basis depending on the nature of the clauses in their employment contract (eg; specialty, compensation, predefined working conditions) [3].

3. The obligation to treat

The obligation to treat originates from the moral duty of each individual to provide assistance to others in times of ‘great need,’ when capable of doing so and when the risk involved is minimal [5]. This ‘obligation’ entails criminal prosecution in case of breaches [5].

Regarding physicians, this obligation is absolute because it combines medical codes of ethics, laws and regulations of public health, medical contracts, civil and professional liability, as well as ethical principles and patient rights. From an ethical standpoint, all physicians have the ‘duty’ to provide care and the ‘obligation’ to provide necessary care to their patients [1]. Physicians, by virtue of their profession, have the duty of ‘beneficence’ [1], which can be justified by two fundamental arguments [1]: i) Their skills, which uniquely qualify them to provide necessary care; and ii) Their consent, as they have deliberately chosen to become physicians.

4. The issue of the risk involved

Despite its variations depending on the country, the medical code of ethics attests to the principle of the primacy of patients’ interests as a fundamental value in medical practice. This generally implies the physician’s duty to provide care even in cases of danger to their own safety, to the extent possible, and by taking reasonable precautions to minimize risks.

The law imposes on the physician a duty to ‘provide care within reasonable limits’ when the risk is deemed ‘reasonable’ [2]. However, there is a legislative ‘ambiguity’ regarding the definitions of ‘reasonable limits’ and ‘reasonable or minimal risk’ [1]. These are abstract notions that involve the coexistence of numerous factors, including the availability of human and logistical skills, the temporal-spatial context [1]. However, the assessment of the minimal risk to be assumed is questioned for certain professions, including physicians, where it is accepted that, due to their training and skills, they may have to accept higher levels of risk [5].

The ethical codes of the AMA have been revisited several times (mainly following major health crises), but the issue of the level of risk to accept has not been resolved [3]. The currently enforced text dates back to 2001 and states that : ‘We, the members of the world community of physicians, solemnly commit ourselves to… apply our knowledge and skills when needed, though doing so may put us at risk’ [3]. This text recognizes the duty of physicians to engage during crises even when the risk would be ‘higher’ for their safety and lives.

Other texts are more demanding towards physicians, such as the British medical good practice guide, which in its formulation emphasizes the duty of continuity of care even when there is a risk and makes protection a duty of the physician [6]: «physicians ‘must not deny treatment to patients because their medical condition may put you at risk. If a patient poses a risk to your health or safety, you should take all available steps to minimize the risk before providing treatment or making other suitable alternative arrangements for providing treatment».

Moreover, during the coronavirus disease 2019 pandemic, and despite the risks involved, the British government had to call upon retired physicians and senior professionals in the field to bolster the teams engaged on the front lines of the battle [1]. This measure sparked much debate regarding the ‘limits’ of the physician’s moral commitment to society [1], and whether this commitment could continue (with implications in terms of civil and criminal liability) after the end of their career (retirement) or even if the physician had deliberately chosen to leave the medical profession and pursue another [1].

5. Possible exemptions from the duty to treat

During a major health crisis, physicians may face two difficult situations: i) Either retracting due to personal reasons (such as family responsibilities or other professional commitments), consequently facing criminal prosecution for negligence, or ii) Engaging despite the risks and assuming the risks of illness or death.

Although, as previously mentioned, risk is considered part of the ‘discomforts’ of the profession, there are no clear texts obliging physicians to sacrifice themselves when death is certain [4]. Although the procedure is cumbersome, physicians will need to prove the existence of a context where the outcome is inevitably fatal or futile despite the risk incurred to justify their failure to fulfill their duty of care [3,4]. It is also important to recall that the right to life and health constitutes one of the universally recognized human rights [4] and that workplace safety is also a fundamental principle of labor law. Therefore, there may be certain situations that would ‘justify’ physicians in refusing care, namely [3]:

1. The existence of a direct threat to their lives (for example: lack of adequate protective equipment [4]), significant medical intervention risk (eg; armed conflict with direct threat),

2. Exceeding their area of expertise (legally, a physician should only intervene within their expertise to provide the best possible patient care and minimize potential harm), and

3. The obligation to maintain continuity of care (ie; medical teams must ensure the continuity of care, a right for all patients, and thus prevent the loss of a significant number of caregivers during crises at the expense of other ‘routine’ pathologies).

Media and societal pressure have consistently glorified frontline physicians, labeling them as ‘heroes’ and ‘white-coated soldiers’ [2], this implied that any attempt to withdraw was perceived as an act of betrayal [2], ethically condemnable and legally punishable [7]. Nevertheless, it is important to recall that historically, and despite the risks involved, physicians do not withdraw, in the vast majority of cases, for at least two significant reasons [1]: i) Corporate solidarity and support for their already overburdened colleagues, and ii) Patriotism by setting an example for a ‘fearful and disoriented’ population [1]. In the face of major crises, which have multiplied in recent years, physicians have bravely confronted adversity, often paying for it with their lives [8–10].

6. The intervention of the state and the mechanism of requisition

It is true that legally, the right to health is guaranteed, while the duty to treat remains a debated notion [3]. In times of crisis, although it is a controversial mechanism, the executive tool of the State is constitutionally empowered to exert various forms of coercion on physicians to compel them to provide care. Similar to the limitation of freedoms and rights in emergencies, the free choice of physicians is often requisitioned as well. The State is authorized to resort to punitive measures such as revoking physicians’ licenses in case of refusal to provide care. The right to refuse care in this scenario is, with rare exceptions, denied (Table 1).

Table 1. Examples of texts dealing with the legal aspect of physicians’ duties during health crisis.

Country	Most discussed texts	Comments
USA There is no specific federal law explicitly exempting physicians from the obligation to treat in case of direct risk to their lives.However, several laws and regulations, including those related to public health and occupational safety, may influence how physicians manage situations presenting a risk to their own safety	1.American medical association code of medical Ethics (opinion 8.3: Physicians’ responsibilities in disaster response and preparedness) [11]: ”Because of their commitment to care for the sick and injured, individual physicians have an obligation to provide urgent medical care during disasters. This obligation hold seven in the face of greater than usual risks to physicians’ own safety, health, or life”.	Recall the ethical principles, the principle of implicit consent which implies acceptance of risks even ‘greater than usual’.
	2.EMTALA (Emergency medical treatment and active labor act) [3]: It obliges participating hospitals to provide emergency services to all patients (regardless of their condition or ability to pay) and to stabilize their health status before transferring or discharging them.	Hospitals have the responsibility to treat individuals with highly infectious diseases if their condition is deemed an emergency. There are no exceptions under EMTALA regarding direct threats or significant risks to the safety of physicians [3]. However, physicians’ duty to treat under EMTALA is voluntary insofar as it applies only to physicians who have contractually agreed to provide emergency care. As the 5th circuit notes, a physician ‘is free to negotiate with [a hospital] regarding his responsibility to facilitate a hospital’s compliance with EMTALA’ [3].
	3.ADA (American with disabilities act): Federal law that prohibits all forms of discrimination [3].	The ADA requires physicians to treat all patients without discrimination, including those who are highly infected with infectious agents (the example is often cited for human immunodeficiency virus, while the debate persists for certain types of viral infections).
	4.OSHA (Occupational safety and health administration): It establishes standards for workplace safety and health and can intervene in situations where physicians are exposed to risks to their health or safety [12].	These are safety standards applicable to employers and workplaces, not individuals (physicians). However, OSHA can serve as a defense argument for physicians who have refused to engage [3].
	5.MSEHPA (Model state emergency health powers act) (Article VI, section 608) [13]: a) ‘To require in-state health providers to assist in the performance of vaccination, treatment, examination, or testing of any individual as a condition of licensure, authorization, or the ability to continue to function as a health care provider in the State.’ b) The appointment of out-of-state emergency health care providers maybe for a limited or unlimited time	It grants considerable executive and legislative powers to state governors in times of emergency, allowing them to suspend or modify laws in order to address health risks^5. This legislation gives the governor the right to ‘call up’ physicians to serve the authority. In case of refusal to comply, the physician risks license revocation [14].
Canada The legislation varies considerably depending on the provinces [7].	1.The Canadian medical association code of ethics [7]: “Physicians have a fundamental ethical responsibility to ‘consider first the well-being of the patient’ but also to promote and maintain [their] own health and well-being». In Canada, physicians owe a duty of care only to their existing patients, even in an emergency [7].	Physicians have ethical responsibilities to their patients, to society, to the profession and to themselves [7].
	2.Labor boards across Canada have affirmed that workers must satisfy 4 criteria to justify a refusal to work because of unsafe or dangerous conditions [7]. Workers must honestly/reasonably believe that their health or wellbeing is endangered. The danger must be sufficiently serious to justify the action; it must be immediate and more than a matter of repugnancy, unpleasantness or fear of minor injury.	Exceptionally, the province of Quebec has a legislation stating that ‘every person must come to the aid of anyone whose life is in peril, unless it would put his or her life or another’s life in jeopardy’ [7]. Similarly, the occupational health and safety statutes of Ontario, Quebec, Nova Scotia, Yukon Territory and the federal government state that ‘workers may not refuse to work if such refusal puts the life, health or safety of another person in danger’ [7].
	All Canadian provinces have legislation that outlines the government’s powers during a state of emergency [7]. This legislation permits the government to authorize or, in some provinces, require physicians to provide services they are reasonably qualified to provide if a pandemic is declared [7].	The right to refuse treatment is a constitutional right in Canada [7]. Physicians have the right to refuse care if their workplace safety is not assured. This right protects them from any disciplinary action. The legislation does not negate physician’s right to refuse to work in unsafe conditions [7].
France	Article L3131–15 of the public health code [15]: ’In territorial jurisdictions where a state of health emergency is declared, the Prime Minister may, by decree order the requisition of any person and all goods and services necessary to combat the health disaster.’	These are legal provisions that grant the power to ‘requisition’ healthcare professionals in the event of an emergency.
Tunisia	The Tunisian medical code of ethics imposes on physicians [16]: To respect life and the human person, which constitutes a primary duty of the physician (Article 2). To assist and treat those in need (Article 5). Not to abandon their patients in case of public danger, except on formal order from qualified authorities (Article 6). To adopt a behavior in line with the general principles governing the practice of the profession, notably to ensure the safeguarding of life and human health (Article 29). Not to refuse care to the patient for professional or personal reasons in case of emergency (Article 37).	The general spirit of Tunisian laws imposes on healthcare professionals, in times of crisis, a primary obligation to act in the best interest of patients despite limitations in therapeutic means and/or working conditions. The physician has the duty to deal with the conditions imposed by the crisis by giving priority to the patient’s interests. It has always been and remains to the credit of physicians not to flee from danger.

7. Conclusion

In times of crisis, the medical community has not yet reached a consensus on its responsibilities, caught between moral obligations and legal texts. Due to the legal uncertainty surrounding physicians’ right to refuse care, they must be cautious in making their choices.

Table

TO TAKE HOME MESSAGE: In times of crisis, physicians face complex moral and legal dilemmas regarding their duty to treat. Despite societal pressures and legal obligations, there remains ambiguity surrounding physicians’ rights to withdraw from risky situations. While historical and ethical considerations often drive physicians to continue their work, the lack of consensus within the medical community highlights the need for cautious decision making amidst legal uncertainties.

Declarations

To enhance the academic writing of our paper, we employed the language model ChatGPT 3.5 [17].

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No potential conflict of interest was reported by the author(s).

Data availability statement

Data sharing not applicable to this article as no datasets were generated or analyzed during the current study.

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The author(s) reported there is no funding associated with the work featured in this article.