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agonyaunt2022-06-07 09:20 pm
ermingarden) wrote in agonyaunt2022-06-07 09:20 pm
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The Ethicist: Can I Withhold Medical Care From a Bigot?
I am a physician, and last year, I took care of a white female patient in the hospital for a bacterial bloodstream infection. A few days into her stay, she began referring to Black staff members by the N-word and to our receptionist by an anti-gay slur. As the supervising physician, I made it clear that this was unacceptable. In general, with challenging patient behavior, I find it best to clearly lay out expectations and the consequences for violating them. So before talking to her, I discussed the situation with the nursing staff and hospital risk management, and we concluded that if she persisted in using this language, we would discharge her from the hospital, against her will if necessary.
I made all this clear to the patient. Thankfully, she stopped and completed the rest of her hospital treatment. But if she had continued using racist and homophobic slurs, would I have been wrong to force her to leave the hospital? Although she was medically stable, and we would have sent her home with oral antibiotics, a discharge would have been substandard care: Had she been discharged and not sought care with IV antibiotics elsewhere, there is a very real possibility that she could have died from her infection.
Is hate speech grounds for refusing medically necessary care? I was taught in medical school that physical violence against staff, or the credible threat of violence, is grounds for refusing care, whereas rude, insulting or mean behavior from a patient is not. Hate speech seems to me to fall between these two categories.
Several Black nursing staff members felt strongly that this is what we needed to do, and I felt it was important to unequivocally support them. (I am a Hispanic, cisgender male.) But the patient had a substance-use disorder. This does not excuse her behavior, but it does put her in a more vulnerable category of patients. My assessment was that she was competent to make medical decisions, but I worry that her disease might have interfered with her ability to fully appreciate the consequences of her actions. Name Withheld
The responsibilities of clinicians should be configured in the light of the long experience of their professions. But these are social roles, and — given that we can all end up as patients, and we all contribute to the provision of health care resources — society has a part to play in determining what they should be. What we’ve decided is that the norms governing medical care are to be primarily concerned with the welfare of the sick. The workplace environment should minimize avoidable injury and insult to health care providers, but not at the expense of that basic aim.
It was entirely proper to tell this patient to stop using racist or homophobic slurs — language that’s offensive whether or not it is addressed to those it derogates. And the Black members of your nursing staff justly value a workplace in which they are treated respectfully; that’s surely something every employee deserves. The question is what you should do when someone ignores this simple moral demand. And here your first consideration must be the risk to a patient of discharging her.
This woman wasn’t in your hospital for some optional cosmetic procedure. She was being hospitalized for a possibly lethal condition, and as you say, discharging her meant providing her with substandard care. Had you done so, you would have violated a central ethic of your profession: that every life is of equal worth (even the lives of those who deny that tenet), that nobody should come to unnecessary harm owing to a caregiver’s decision.
The reason you can discharge someone who poses a serious threat of violence to others in the facility is, roughly, that if we face a choice between seriously endangering Jamie and seriously endangering Alex, and Jamie is the source of the danger to Alex, we should prefer the threatened person to the threatener. We’re essentially choosing between bad medical outcomes; in a clinical setting, knives should be wielded only by surgeons. That wasn’t the situation you faced. Hate speech produces what some legal scholars would deem a “dignitary affront”; and a dignitary affront, however much we deplore it, is not a medical crisis. Your primary brief wasn’t to calibrate the harms done by hate speech to the climate of your workplace. It was to ensure your patient received appropriate care, whether in your hands or others’.
Let me note, too, that the freight of words is affected by who’s speaking them. Patients — perhaps as a result of sepsis-associated delirium or certain neurological disorders — may not be in control of their speech; people who are subject to Tourette-syndrome-related coprolalia should not be denied medical treatment because their words make clinicians uncomfortable. And your patient? She had a problem with substance use and employed language that is, increasingly, stigmatizing of the user. She had no power over the clinicians who attended to her and to whose decisions she was subject. One indication of her lack of status is that your hospital’s risk managers evidently decided that the institution could safely eject her without being held accountable for the consequences. Though they didn’t intend to mete out a punishment that might have amounted to a death sentence, the risk managers effectively put the hospital ahead of the patient.
The duties of medical professionals are demanding. In wartime, a medic can have the responsibility of saving the life of a wounded enemy soldier, even if the soldier has just killed one of that medic’s friends. The fundamental clinical imperatives — evolved, collectively, over generations — shouldn’t be hastily set aside. Clinicians have duties of care to patients, even odious ones. And the more serious the likely consequences of refusing care, the larger the burdens they should be willing to accept.
I made all this clear to the patient. Thankfully, she stopped and completed the rest of her hospital treatment. But if she had continued using racist and homophobic slurs, would I have been wrong to force her to leave the hospital? Although she was medically stable, and we would have sent her home with oral antibiotics, a discharge would have been substandard care: Had she been discharged and not sought care with IV antibiotics elsewhere, there is a very real possibility that she could have died from her infection.
Is hate speech grounds for refusing medically necessary care? I was taught in medical school that physical violence against staff, or the credible threat of violence, is grounds for refusing care, whereas rude, insulting or mean behavior from a patient is not. Hate speech seems to me to fall between these two categories.
Several Black nursing staff members felt strongly that this is what we needed to do, and I felt it was important to unequivocally support them. (I am a Hispanic, cisgender male.) But the patient had a substance-use disorder. This does not excuse her behavior, but it does put her in a more vulnerable category of patients. My assessment was that she was competent to make medical decisions, but I worry that her disease might have interfered with her ability to fully appreciate the consequences of her actions. Name Withheld
The responsibilities of clinicians should be configured in the light of the long experience of their professions. But these are social roles, and — given that we can all end up as patients, and we all contribute to the provision of health care resources — society has a part to play in determining what they should be. What we’ve decided is that the norms governing medical care are to be primarily concerned with the welfare of the sick. The workplace environment should minimize avoidable injury and insult to health care providers, but not at the expense of that basic aim.
It was entirely proper to tell this patient to stop using racist or homophobic slurs — language that’s offensive whether or not it is addressed to those it derogates. And the Black members of your nursing staff justly value a workplace in which they are treated respectfully; that’s surely something every employee deserves. The question is what you should do when someone ignores this simple moral demand. And here your first consideration must be the risk to a patient of discharging her.
This woman wasn’t in your hospital for some optional cosmetic procedure. She was being hospitalized for a possibly lethal condition, and as you say, discharging her meant providing her with substandard care. Had you done so, you would have violated a central ethic of your profession: that every life is of equal worth (even the lives of those who deny that tenet), that nobody should come to unnecessary harm owing to a caregiver’s decision.
The reason you can discharge someone who poses a serious threat of violence to others in the facility is, roughly, that if we face a choice between seriously endangering Jamie and seriously endangering Alex, and Jamie is the source of the danger to Alex, we should prefer the threatened person to the threatener. We’re essentially choosing between bad medical outcomes; in a clinical setting, knives should be wielded only by surgeons. That wasn’t the situation you faced. Hate speech produces what some legal scholars would deem a “dignitary affront”; and a dignitary affront, however much we deplore it, is not a medical crisis. Your primary brief wasn’t to calibrate the harms done by hate speech to the climate of your workplace. It was to ensure your patient received appropriate care, whether in your hands or others’.
Let me note, too, that the freight of words is affected by who’s speaking them. Patients — perhaps as a result of sepsis-associated delirium or certain neurological disorders — may not be in control of their speech; people who are subject to Tourette-syndrome-related coprolalia should not be denied medical treatment because their words make clinicians uncomfortable. And your patient? She had a problem with substance use and employed language that is, increasingly, stigmatizing of the user. She had no power over the clinicians who attended to her and to whose decisions she was subject. One indication of her lack of status is that your hospital’s risk managers evidently decided that the institution could safely eject her without being held accountable for the consequences. Though they didn’t intend to mete out a punishment that might have amounted to a death sentence, the risk managers effectively put the hospital ahead of the patient.
The duties of medical professionals are demanding. In wartime, a medic can have the responsibility of saving the life of a wounded enemy soldier, even if the soldier has just killed one of that medic’s friends. The fundamental clinical imperatives — evolved, collectively, over generations — shouldn’t be hastily set aside. Clinicians have duties of care to patients, even odious ones. And the more serious the likely consequences of refusing care, the larger the burdens they should be willing to accept.
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I also want to note that, although I'm not a lawyer (yet) and am certainly no expert in healthcare law – especially since I don't even know what jurisdiction this was in – it seems likely that if LW actually had discharged the patient for this reason, it could have opened up LW personally and the hospital generally to legal liability.
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it seems like LW was under the impression that the reason violence can be grounds for withholding care is basically punitive and that hate speech could/should therefore be treated the same way.
Hmm. That wasn't what I thought he thought, though I admit I am not neutral here. I thought that he wasn't drawing the line between "real" physical violence and "only" words that The Ethicist is drawing, and he sought to protect his demographically vulnerable staff from both. I agree that he can't but I honestly would prefer working with him than with one of the many doctors who would pretty clearly agree with the patient but think it uncouth though not inaccurate to say so in as many words. At least he'd have his coworkers' backs.
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Either way, I 100% agree with you that LW's heart is in the right place and his intentions were good.
(Also, for goodness' sake, no one, especially here, should expect you to be "neutral"!)
I do think it's weird that Appiah suddenly introduced the concept of "dignitary affront" without really going into what that means? Why use the term at all? It's not helpful outside a specialized context, and can be actively misleading – without an adequate explanation, it sounds like Appiah is minimizing the severity of the hate speech, when he seems to be trying to do the opposite.
ETA: Realized I was once again unclear, whoops. I meant that I initially read LW as thinking hate speech, like physical violence, was sufficiently bad behavior by patient to justify refusing/discontinuing care, while LW could just as easily have meant hate speech, like physical violence, was sufficiently harmful to care providers (i.e., the nursing staff) to justify refusing/discontinuing care. I think Appiah went with the first reading in his response, but as you point out the second is just as plausible, and makes me even more sympathetic to LW (even though I still agree with you that LW would not have been in the right to refuse care if the patient hadn't stopped harassing the nursing staff).
ETA 2, because I can't stop thinking about this: I think my initial response to the letter was very much dominated by my reaction to LW's statement that "there is a very real possibility that [the patient] could have died from her infection" if she didn't (a) seek and (b) obtain care (incl. IV antibiotics) elsewhere (and what if she continued that abusive behavior at another hospital?). I'm not a medical professional, but it's always been my understanding/assumption as a layperson that the wellbeing of the patient (esp. in a life-or-death situation) is the overriding concern. (Incidentally, I really appreciated your discussion of your own professional experiences!!!) In retrospect, I think that led me to view LW in a less favorable light, when LW's instinct to protect his coworkers is commendable.
ETA 3 (
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ahahha I kind of love this calvacade of edits, getting to watch you think in realtime. Thank you for writing me back. :)
(Also I forgot The Ethicist was Appiah so now my response is slightly less angry and slightly more boggled, but more on that later)
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Hi, I'm hopping in here because this thread gave me a question I think you might be able to address if not altogether answer about US free speech law and... at least the way it's discussed in popular culture, or at least throw me in the direction of a useful answer?
Our LW is asking about the ethics of denying further service to a patient based on "hate speech". I think US law has ruled that "hate speech" is still 1st Amendment protected speech.
However... there's this other whole concept I have encountered in the wild, which is the difference between "assault" and "assault and battery". And, again in the wild, (i.e. discussions of this in various contexts among individuals with varying and unknown levels of legal knowledge and/or expertise), "assault" as a crime is... just the words? Whereas "assault and battery" is when the words have become actions?
I'm perfectly happy if you want to shove a reference list or even a reputable site or several for me to read through (preferably not behind a paywall or academic-access-only equivalent) but this one has been niggling at me for some time:
Namely, if "assault" is threatening speech that is a crime in itself, when does "hate speech" rise to the level of "assault"?
(Also, maybe I need to make this a top-level comment, but right now my equivalent of "layman's definition of porn is you know it when you see it" is that a lot of what's getting called "hate speech" differs from assault-as-threatening-words-that-are-a-crime in the way that children in the back seat of a car do the "Iiiiiiiii'm not touuuuuuuuching youuuuuuuuu" singsong while getting as close to the other person's side or sitting as close to them as possible without going over the designated line. As in, the recipient of the speech has some very good reason to believe that the person speaking will in fact cross that damn line the moment the person thinking believes they're allowed.)
And another thing that I'm throwing in this thread that I might do better to make a top-level comment but I wanted your opinion of it. I've had reason to be occasionally in and out of a medical facility for the last over-a-year which had a posted sign to the effect that (on the one hand, I wish I could remember the exact wording, but on the other hand, I know just enough about US law to know how much some of the finer points of what's legal vary not just from state to state but from county/other-locality to county/other-locality, and for that matter whether a facility is public or private, and I'm morally certain this facility workshopped their signs with relevant local legal experts) the medical personnel and staff are here to provide patients with the best quality of care they can, and that as such there's a list of behaviors that are not allowed toward staff (and possibly other patients), including but not limited to [some description of threatening/hostile speech] and... I think... were grounds for denial/discontinuation of care/removal from premises? So if LW wants to develop/work with the other care providers at the facility to develop something like that, what are your thoughts on something where patients are on notice about behaviors that will cause staff to discontinue/refuse care and allow patients (and visitors) to be removed from the premises before treatment commences? (I mean, I'm willing to bet that your answer is going to be along the lines of "location, location, location" or rather "jurisdiction, jurisdiction, jurisdiction", i.e. what state and local laws apply, but since this is also an ethics question I'm interested in your answer.)
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(Obligatory reminder: I won't be a lawyer until next year, and nothing I say here should be taken as legal advice.)
The First Amendment isn't likely to be a concern in this situation. For one thing, First Amendment free speech guarantees apply to government restrictions on speech, not private individuals, companies, or organizations – that's why, e.g., Twitter or Facebook can ban people for just about anything or delete whatever posts they want – so if it's a private hospital, the First Amendment doesn't apply. Even if the hospital counts as a government entity for First Amendment purposes, though, I still don't think this would run into First Amendment problems.
I am really not an expert in First Amendment law, but: A key factor in determining whether a restriction on speech runs afoul of the First Amendment is whether the restriction is content-based or content-neutral. Content-neutral restrictions are not unconstitutional. Here, I think one could argue the restriction (such as it is) would be content-neutral. The title of the column is really misleading, because the issue isn't ultimately about the fact that the things the patient is saying were bigoted; it's about the fact that she was harassing the staff by yelling bigoted things. So one could argue that this is a situation in which there's a content-neutral restriction on harassing the staff, which applies regardless of the ideas expressed in the harassing speech.
When I mentioned legal liability above, I was thinking about liability for medical malpractice if LW and LW's workplace, in discharging the patient, failed to meet the accepted standard of care, especially if it was done in violation of generally agreed-upon principles medical ethics (which it seems like it would have been). That's totally unrelated to free speech issues.
Definitions of "assault" and "battery" in a criminal context are extremely variable across jurisdictions. In California, for example, simple assault (Penal Code § 240) is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" – it doesn't require actual injury or even actual physical contact. Battery (PC § 242), by contrast, is "any willful and unlawful use of force or violence upon the person of another." So in California, if A swings at B but misses, A has committed assault, but not battery. In New York, things are classified very differently: the crime of assault requires actual injury, and there is no crime of battery (though there is still a tort of battery, which is a civil cause of action rather than a crime). So in New York, if X punches Y in the face, breaking Y's nose, X is both guilty of the crime of assault and liable to Y for civil damages for battery.
Ultimately, though, I don't know of any jurisdiction where hate speech would count as assault; assault requires, if not actual injury, at least attempted physical violence.
As for your last point: Definitely "jurisdiction, jurisdiction, jurisdiction," because there might be particular applicable statutes, but generally speaking, I believe liability for medical malpractice in this scenario would be determined by generally accepted medical ethics. (This is very much not my area of expertise, though.) I'd love it if
I'm hoping I addressed everything in your comment – let me know if anything isn't clear!
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