AIDS: Society, Ethics and Law

Udo Schüklenk

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351577205
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This volume features a collection of the most important articles on the social, ethical and legal implications of a variety of problems caused by AIDS. The wide range of articles selected for inclusion were chosen on the basis of three criteria: their theoretical depth and coherence, their impact on the subsequent debate and on the social and ethical relevance of the problems addressed. Sections in the book include: physicians and patients, AIDS and the law, HIV testing, clinical research in developed countries, clinical research in developing countries and dying with dignity

Part I
The Physician—Patient Relationship

Duty to Treat

[1]

Hastings Center Report April/May 1988

Legal Risks and Responsibilities of Physicians in the Aids Epidemic

by George J. Annas

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The refusal of some physicians to care for AIDS patients has been met with general condemnation. Surgeon General C. Everett Koop, for example, has labeled them a “fearful and irrational minority” who are guilty of “unprofessional conduct” that “threatens the very fabric of health care in this country.”¹ And a pointed editorial in the New York Times insisted that physicians who think their responsibility to themselves is greater than to their patients “need a new profession.”²

But it is one thing verbally to label such behavior inappropriate, reprehensible, or unprofessional; it is quite another to do something about it. The issue of proper treatment for AIDS and HIV-infected patients should be primarily addressed by the ethics of the medical profession. It is, after all, medical practitioners who have the primary right and obligation to define the standards of their profession. However, should the profession fail to respond adequately to the needs of patients in an unprecedented epidemic, the law will rightfully continue to set a standard of minimum conduct below which no physician may fall without confronting the possibility of losing a malpractice or discrimination suitor even his license to practice.

This article’s primary concern is to summarize the existing law relating to physicians’ obligations to care for AIDS, ARC, and HIV-infected patients. Secondarily, it identifies ways that current law can be strengthened to define more sharply physicians’ obligations, so that this population of patients will be assured of continued access to the medical care they need and have a right to obtain. Although this analysis deals with physicians’ responsibilities, it is likely that similar legal principles will be used to judge the conduct of dentists, optometrists, nurses, physician assistants, and other allied health professionals.

Legal Obligations to Treat

American common law is firmly grounded on notions of individual liberty and economic freedom that support the proposition that absent some special relationship, no citizen owes any other citizen anything. As applied to the practice of medicine, the general rule, sometimes denoted the “no duty rule,” is that a physician is not obligated to treat any particular patient in the absence of a consensual doctor-patient relationship.³ In the absence of a prior agreement or a statutory or regulatory prohibition, physicians (like other citizens) can, in deciding whether to accept patients, discriminate among them on the basis of all sorts of irrelevant and invidious criteria; from race to religion, to personal appearance and wealth, or by specific disease, like AIDS.

Over the years, there has been some erosion in the “no duty rule” in both common law and statutory law. Courts have affirmed both a duty to treat in limited emergency situations, and the continuing obligation of physicians once a consensual doctor-patient relationship is established. Statutes have been primarily directed toward articulating antidiscrimination principles. In addition, physicians may accept certain obligations to whole groups of patients by contract, such as employment contracts with hospitals and prepaid health plans (HMOs, for example) and agreements related to reimbursement by Medicare and Medicaid.

The Emergency Treatment Rule

Physicians working in emergency rooms must treat all patients who arrive with a medical emergency. Virtually every modern court has repudiated the ancient doctrine that an emergency room physician need treat only those patients the physician or hospital chooses. The relevant issue is not whether the person can pay, what color the person’s skin is, or even if the person has reached the age of consent; the only legally relevant issue is whether the person is experiencing a medical emergency. If so, the individual has a legal right to be treated, and physicians, nurses, and others working in the emergency room have a legal obligation to provide this treatment In case law, there is no suggestion of exceptions based on any specific virus (like HIV) the patient might also be harboring, or any specific disease (like AIDS) the patient may be suffering.⁴

Courts have reached this conclusion for a variety of reasons, including that citizens have a right to rely upon the expectation that care will be extended implicit in having an “emergency mom”; that public hospitals have an obligation to treat all who apply for treatment; and that particular state statutes and regulations require emergency rooms to treat all emergency patients. Whatever the basis, this rule is essentially universal and noncontroversial. Of course, emergency ward personnel have the right to take reasonable precautions to protect themselves from harm, and their employers should comply with Centers for Disease Control (CDC) recommendations regarding appropriate protective procedures and clothing.⁵ But protection does not include acts that would amount to refusing treatment, or would compromise good patient care.

Physicians are not expected by the law to be heroes, but are obligated to act as other qualified physicians would act in the same or similar circumstances. Thus, if a patient threatened an emergency room physician with a gun or a knife, the substantial risk to health and life would provide legal warrant for the physician to refuse to treat such a patient Likewise, if the patient’s medical condition exposed a physician to great risk, and if it was the accepted practice of qualified physicians not to treat the person under the same or similar circumstances, the physician would be legally justified in refusing to treat the patient Although AIDS is a fatal, infectious disease if acquired, it is not the currently accepted medical practice to refuse to treat HIV-infected patients because of the risk they pose to providers.

Still, the emergency treatment rule may have very limited application in requiring physicians to treat AIDS or HIV-infected patients. Only a minority of these individuals are likely to require urgent treatment in emergency rooms. And even then, the obligation to treat ends with the emergency. If the person can be treated better elsewhere, transfer to another facility is permitted (even encouraged), at least with the consent of the patient and the other facility.⁶

The obligation to treat in an emergency does not usually apply outside of the emergency room setting. Only one state, Massachusetts, has adopted licensing regulations that require its physicians to render emergency care to any person with a medical emergency, no matter where that emergency occurs.⁷ Even under this rule, however, physicians who are not competent to treat in an emergency are required only to try to find another physician who can.

Thus, in the absence of some contractual or statutory right, AIDS and HIV-infected patients, like all other persons, have a legal right under common law to access to medical services in the United States only if they are suffering a medical emergency and are able to obtain emergency medical attention. That this situation is still tolerated in the United States is a national disgrace; but by refusing to grant universal access to health care and medical services to AIDS and HIV-infected patients, we are treating them no differently than anyone else.

Duty to Continue Treatment

A patient’s right to treatment is greatly enhanced after the establishment of a voluntary relationship with a particular physician, for then the doctor has a duty not to abandon the patient The general rule is that once a doctor-patient relationship is established, it continues until:

1. it is terminated by mutual consent;

2. it is terminated by the patient;

3. the physician’s services are no longer needed; or

4. the physician withdraws after reasonable notice to the patient.⁸

The creation of a doctor-patient relationship, therefore, may be critical to the legal obligation of a physician to care for a particular patient Such a relationship is always formed when the physician agrees to examine or treat the patient, which usually involves a face-to-face meeting. But at least one court has held that a doctor-patient relationship can be created when the physician accepts an appointment with the patient for an office visit, at least where the appointment relates to a specific condition mentioned by the patient over the telephone when seeking the appointment.⁹

The physician cannot abandon or refuse to treat a patient already under his or her care simply because that person is infected with HIV or has AIDS, at least not without reasonable notice. The distinction between an HIV-infected patient and one with AIDS or ARC should be underlined here. Treating an individual with AIDS or ARC involves the knowledge and skill needed to treat a specific disease; treating an HIV-infected patient involves knowing what precautions to take to avoid infection while treating a different, usually unrelated, condition. If the physician is unqualified to treat the patient, he or she usually has an obligation to refer the patient to a specialist or someone who is qualified to treat the patient’s condition. Thus, a physician may be able (or even required) to transfer the care of the patient to another provider. Nonetheless, as long as the patient requires treatment for the condition that the physician is treating or attending (e.g., pregnancy), the physician cannot tenninate the relationship without ensuring that the patient is able to obtain alternative care.

As with the emergency rile, the strength of the duty of nonabandonment is limited if there are alternative treatment sources available in the community. However, if alternatives do not exist, this principle may protect the individual from being left without a caregiver, albeit one who may be treating only because compelled by legal duty.

Antidiscrimination Statutes

Since private citizens can discriminate against their fellow citizens in the absence of prohibitory or antidiscrimination legislation, both the federal and state governments have enacted statutes to protect against some of the most offensive forms of discrimination. The most noteworthy federal effort is the Civil Rights Act of 1964. Among other things, the Act prohibits places of public accommodation involved in interstate commerce (such as transportation, food, and lodging establishments) from discriminating on the basis of race, religion or national origin. Subsequently, Congress passed the Rehabilitation Act of 1973, which prohibits discrimination in federally assisted programs on the basis of handicap when the individual is “otherwise qualified.” The U.S. Supreme Court recently applied this law and the concept of”handicapped individual” to a person with tuberculosis, a potentially contagious disease.¹⁰ The ruling mandated that such a person cannot be discriminated against in employment covered by the act if he or she is “otherwise qualified” for the position.

The same logic almost certainly applies to an individual with AIDS, but the court specifically declined to rule whether an individual who is infected with HIV is handicapped. Nevertheless, the ruling in the tuberculosis case supports the conclusion that an HIV-infected individual is handicapped.¹¹ Specifically, the Court noted that the purpose of the Rehabilitation Act was to pro...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I The Physician–Patient Relationship
• Part II AIDS and the Law
• Part III HIV Testing
• Part IV Clinical Research
• Part V Access to (Experimental) Drugs
• Part VI Dying with Dignity
• Name Index