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Potential Penalties for Health Care Professionals Who Refuse to Work During a Pandemic
Carl H. Coleman, JD; Andreas Reis, MD
JAMA. 2008;299(12):1471-1473.
The severe acute respiratory syndrome (SARS) epidemic and the spread of avian influenza have generated renewed interest in health care professionals' (HCPs?) obligations to work during a pandemic. However, most discussions of this issue have occurred on a relatively abstract level of ethical analysis, with less attention to what should actually happen to HCPs who are unwilling to work. Should HCPs who refuse to work be fired from their jobs? Should they lose their licenses? Should they go to jail?
It is a real possibility that some HCPs may refuse to work during a pandemic. Working during pandemics could place HCPs?and, by extension, their families?at significant risk of infection. Protective measures like masks may reduce the risk, but some HCPs were infected during the SARS crisis even after such measures were implemented. Even though most HCPs continued to work during the SARS epidemic despite the risks, survey results indicate that a substantial number of HCPs would be unwilling to work under comparable conditions.
This commentary argues that the penalties for refusing to work during a pandemic should be limited to those an HCP would face for refusing to treat patients with contagious infections in nonpandemic situations. This argument is important because some states, such as Maryland and South Carolina, have enacted laws that authorize license revocations, fines, or even imprisonment for HCPs who disobey public health officials' orders to work during public health emergencies. These penalties would apply even to HCPs whose occupations do not ordinarily encompass clinical responsibilities, or to HCPs who are not currently part of the workforce?for example, physicians or nurses who are taking time off from work to care for their children. These laws seem unjustified.
General Penalties Applicable to HCPs Who Refuse to Work
Health care professionals may be subject to a variety of work obligations during a pandemic. First, many HCPs are employees, such as nurses in a hospital. If they do not report to work, they could be fired or subject to other penalties, such as a reduction in pay. It is possible that some employees would be able to demonstrate that their workplaces are "abnormally dangerous," in which case labor laws might grant them the right to refuse to work without jeopardizing their employment. However, the "abnormally dangerous" standard is difficult to meet, particularly in workplaces that involve inherent risks, such as hospitals.
Second, some HCPs are subject to contractual work obligations. For example, physicians' contracts with hospitals may require them to be on call for emergency consultations, or contracts with managed care organizations may require physicians to treat members of the organization's health plans. If physicians fail to fulfill their on-call duties, they could lose their clinical privileges; if physicians fail to treat members of their health plans, they could be dropped from the managed care network. Health care professionals who breach contractual obligations also may be required to pay for replacement coverage and, in some cases, to compensate patients who sustain injuries as a result of delays in obtaining necessary treatment.
Health care professionals also may have contractual obligations to individual patients. A treatment relationship between an HCP and a patient creates an implied contractual obligation of "continuing attention." This obligation prevents the HCP from unilaterally terminating the relationship without adequate notice for the patient to seek treatment elsewhere.
Individuals can be excused from performing contractual obligations because of health dangers that were not foreseeable at the time the contract was entered. However, this defense would have little application to most HCPs because it would be difficult to demonstrate that the risks of treating patients with contagious infections were not reasonably foreseeable.
Moreover, some HCPs who refuse to work may be subject to penalties pursuant to statutes or regulations. Under state licensing laws, for example, abandonment of an existing patient is grounds for disciplinary action. In addition, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) authorizes fines and exclusion from the Medicare program of physicians who fail to provide appropriate screening or stabilizing treatment at a hospital at which they have emergency care responsibilities. The secretary of Health and Human Services has the authority to waive certain EMTALA sanctions during public health emergencies, but these waivers would probably not apply to physicians who simply fail to report to work at a hospital.
Special Penalties for HCPs Who Refuse to Work During Public Health Emergencies
Some states, such as Maryland and South Carolina, have enacted laws that subject HCPs who refuse to work during a pandemic to penalties in a far broader range of circumstances than those described above. Many of these laws are based on the Model State Emergency Health Powers Act (MSEHPA), which authorizes public health officials to order HCPs "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 this State." Some states, including Maryland, have gone further than the MSEHPA by authorizing fines or imprisonment of HCPs who disobey orders to work.
There is a significant difference between these laws and penalties for failing to fulfill voluntarily assumed employment or contractual obligations. An HCP who affirmatively agrees to treat patients leads hospitals and patients to rely on his or her presence and, as a result, to refrain from making alternative arrangements. If the HCP fails to follow through on the commitment to treat, those individuals and institutions that have relied on it will be worse off than if the promise had never been made. By contrast, laws that penalize HCPs for disobeying public health officials' orders to work, regardless of the HCP's employment or contractual responsibilities, cannot be justified as mechanisms for enforcing prior commitments. The fact that an individual is qualified to treat patients does not necessarily mean that he or she has promised to do so.
One way to justify the application of these laws to HCPs who are not subject to preexisting employment or contractual treatment obligations would be to demonstrate that HCPs implicitly consent to treat patients in emergencies as part of the process of becoming a professional. One argument, for example, is that the oaths taken at graduation from medical school, or professional associations' statements affirming a duty to work during disasters, indicate that professionals are aware that they could be required to work during infectious disease outbreaks. However, although it might be possible to modify medical school oaths to incorporate a commitment to work during public health emergencies, current oaths contain only general pronouncements like "I solemnly pledge myself to consecrate my life to the service of humanity." Individuals who make such a statement would have little reason to believe that they have agreed to treat patients with contagious infections regardless of employment responsibilities. As for professional associations, it is important to remember that, unlike professional associations in many other countries, professional associations in the United States are voluntary organizations with no authority to regulate medical practice. Even though courts sometimes cite professional associations' statements as evidence of professional standards, they have not treated those statements as a sufficient basis, in and of themselves, for establishing enforceable duties.
Some scholars maintain that HCPs, or at least physicians, implicitly have accepted an obligation to treat patients during a pandemic as part of a "social contract" between society and the medical profession. The claim is that "society grants the medical professions special social status and certain privileges" in exchange for the profession's implicit agreement "to promote society's health." Generally, physicians do incur obligations in exchange for benefits such as subsidized medical education and monopoly protection of the profession (ie, legal protection from competition by nonlicensed practitioners). However, the fact that physicians have social obligations does not mean that they must fulfill those obligations by risking their lives. Many physicians provide other valuable forms of community service, such as by working in medically undeserved areas or providing free care to indigent patients.
Physicians may enjoy high societal status in part because the public expects physicians to act altruistically. Thus, if physicians refuse to work during a pandemic, the medical profession may be perceived negatively. However, physicians who have never undertaken patient care responsibilities should not be penalized solely because of public expectations about the profession in general. Expectations alone do not normally create enforceable obligations.
Some scholars suggest that whether HCPs have agreed to treat patients during infectious disease outbreaks is not the relevant question. Instead, the obligation to work during a pandemic derives from HCPs' specialized skills that "enable [them] to help more effectively, and in greater safety, than the average citizen."
The argument that special skills give rise to special ethical duties has some merit. In contrast to many other countries, US jurisprudence does not recognize a legal "duty to rescue," yet most people would probably agree that a person who is uniquely qualified to save someone's life has a prima facie ethical obligation to do so. For example, few members of the public would deny that a passerby who sees someone lying injured on a deserted road should try to help, regardless of whether doing so is legally required. The moral obligation stems from the fact that a person's life is in danger, a simple intervention like calling for an ambulance would involve minimal burdens, and no one else may be around to help.
However, even the most ardent proponents of the duty to rescue generally agree that individuals should not be required to undertake rescues at significant personal peril. Requiring HCPs to treat patients with contagious infections, in the absence of any preexisting treatment obligations, would violate this principle. Such requirements also could conflict with HCPs' obligations to their other patients or their own families. Moreover, even if the moral obligation to assume risk is considered to be greater than usual during public health emergencies, HCPs are not the only ones whose services will be required during infectious disease outbreaks. Numerous categories of individuals will be essential during a pandemic, ranging from funeral directors to border control agents. The law should not single out HCPs for drastic penalties like license revocations or imprisonment when other individuals whose contributions are equally important are free to refuse to work without similar repercussions.
Penalties for HCPs who refuse to work during an epidemic have not yet been imposed. Rather than relying on punitive measures, policy makers should develop incentives to encourage all essential professionals to volunteer to work during infectious disease outbreaks. For example, governments could create funds to provide hazard pay for individuals who volunteer to work during a pandemic. They also could make it easier to credential individuals to work during emergencies and adopt measures to protect volunteers from criminal or civil liability. Professional organizations can play a role by promoting a spirit of volunteerism, which can be a powerful way of encouraging service without resorting to compulsion. Threatening HCPs with license revocations and imprisonment, even if they have not violated any preexisting treatment obligations, is not the solution.
AUTHOR INFORMATION
Corresponding Author: Carl H. Coleman, JD, Health Law & Policy Program, Seton Hall Law School, One Newark Center, Newark, NJ 07102 (colemaca@shu.edu).
Financial Disclosures: None reported.
Disclaimer: Dr Reis is a staff member of the World Health Organization. The authors alone are responsible for the views expressed in this article, and they do not necessarily reflect the decisions, policy, or views of the World Health Organization.
<!--stopindex-->Author Affiliations: Health Law & Policy Program, Seton Hall Law School, Newark, New Jersey (Mr Coleman); and Department of Ethics, Equity, Trade & Human Rights, World Health Organization, Geneva, Switzerland (Dr Reis).
hat-tip to pseudorandom
Carl H. Coleman, JD; Andreas Reis, MD
JAMA. 2008;299(12):1471-1473.
The severe acute respiratory syndrome (SARS) epidemic and the spread of avian influenza have generated renewed interest in health care professionals' (HCPs?) obligations to work during a pandemic. However, most discussions of this issue have occurred on a relatively abstract level of ethical analysis, with less attention to what should actually happen to HCPs who are unwilling to work. Should HCPs who refuse to work be fired from their jobs? Should they lose their licenses? Should they go to jail?
It is a real possibility that some HCPs may refuse to work during a pandemic. Working during pandemics could place HCPs?and, by extension, their families?at significant risk of infection. Protective measures like masks may reduce the risk, but some HCPs were infected during the SARS crisis even after such measures were implemented. Even though most HCPs continued to work during the SARS epidemic despite the risks, survey results indicate that a substantial number of HCPs would be unwilling to work under comparable conditions.
This commentary argues that the penalties for refusing to work during a pandemic should be limited to those an HCP would face for refusing to treat patients with contagious infections in nonpandemic situations. This argument is important because some states, such as Maryland and South Carolina, have enacted laws that authorize license revocations, fines, or even imprisonment for HCPs who disobey public health officials' orders to work during public health emergencies. These penalties would apply even to HCPs whose occupations do not ordinarily encompass clinical responsibilities, or to HCPs who are not currently part of the workforce?for example, physicians or nurses who are taking time off from work to care for their children. These laws seem unjustified.
General Penalties Applicable to HCPs Who Refuse to Work
Health care professionals may be subject to a variety of work obligations during a pandemic. First, many HCPs are employees, such as nurses in a hospital. If they do not report to work, they could be fired or subject to other penalties, such as a reduction in pay. It is possible that some employees would be able to demonstrate that their workplaces are "abnormally dangerous," in which case labor laws might grant them the right to refuse to work without jeopardizing their employment. However, the "abnormally dangerous" standard is difficult to meet, particularly in workplaces that involve inherent risks, such as hospitals.
Second, some HCPs are subject to contractual work obligations. For example, physicians' contracts with hospitals may require them to be on call for emergency consultations, or contracts with managed care organizations may require physicians to treat members of the organization's health plans. If physicians fail to fulfill their on-call duties, they could lose their clinical privileges; if physicians fail to treat members of their health plans, they could be dropped from the managed care network. Health care professionals who breach contractual obligations also may be required to pay for replacement coverage and, in some cases, to compensate patients who sustain injuries as a result of delays in obtaining necessary treatment.
Health care professionals also may have contractual obligations to individual patients. A treatment relationship between an HCP and a patient creates an implied contractual obligation of "continuing attention." This obligation prevents the HCP from unilaterally terminating the relationship without adequate notice for the patient to seek treatment elsewhere.
Individuals can be excused from performing contractual obligations because of health dangers that were not foreseeable at the time the contract was entered. However, this defense would have little application to most HCPs because it would be difficult to demonstrate that the risks of treating patients with contagious infections were not reasonably foreseeable.
Moreover, some HCPs who refuse to work may be subject to penalties pursuant to statutes or regulations. Under state licensing laws, for example, abandonment of an existing patient is grounds for disciplinary action. In addition, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) authorizes fines and exclusion from the Medicare program of physicians who fail to provide appropriate screening or stabilizing treatment at a hospital at which they have emergency care responsibilities. The secretary of Health and Human Services has the authority to waive certain EMTALA sanctions during public health emergencies, but these waivers would probably not apply to physicians who simply fail to report to work at a hospital.
Special Penalties for HCPs Who Refuse to Work During Public Health Emergencies
Some states, such as Maryland and South Carolina, have enacted laws that subject HCPs who refuse to work during a pandemic to penalties in a far broader range of circumstances than those described above. Many of these laws are based on the Model State Emergency Health Powers Act (MSEHPA), which authorizes public health officials to order HCPs "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 this State." Some states, including Maryland, have gone further than the MSEHPA by authorizing fines or imprisonment of HCPs who disobey orders to work.
There is a significant difference between these laws and penalties for failing to fulfill voluntarily assumed employment or contractual obligations. An HCP who affirmatively agrees to treat patients leads hospitals and patients to rely on his or her presence and, as a result, to refrain from making alternative arrangements. If the HCP fails to follow through on the commitment to treat, those individuals and institutions that have relied on it will be worse off than if the promise had never been made. By contrast, laws that penalize HCPs for disobeying public health officials' orders to work, regardless of the HCP's employment or contractual responsibilities, cannot be justified as mechanisms for enforcing prior commitments. The fact that an individual is qualified to treat patients does not necessarily mean that he or she has promised to do so.
One way to justify the application of these laws to HCPs who are not subject to preexisting employment or contractual treatment obligations would be to demonstrate that HCPs implicitly consent to treat patients in emergencies as part of the process of becoming a professional. One argument, for example, is that the oaths taken at graduation from medical school, or professional associations' statements affirming a duty to work during disasters, indicate that professionals are aware that they could be required to work during infectious disease outbreaks. However, although it might be possible to modify medical school oaths to incorporate a commitment to work during public health emergencies, current oaths contain only general pronouncements like "I solemnly pledge myself to consecrate my life to the service of humanity." Individuals who make such a statement would have little reason to believe that they have agreed to treat patients with contagious infections regardless of employment responsibilities. As for professional associations, it is important to remember that, unlike professional associations in many other countries, professional associations in the United States are voluntary organizations with no authority to regulate medical practice. Even though courts sometimes cite professional associations' statements as evidence of professional standards, they have not treated those statements as a sufficient basis, in and of themselves, for establishing enforceable duties.
Some scholars maintain that HCPs, or at least physicians, implicitly have accepted an obligation to treat patients during a pandemic as part of a "social contract" between society and the medical profession. The claim is that "society grants the medical professions special social status and certain privileges" in exchange for the profession's implicit agreement "to promote society's health." Generally, physicians do incur obligations in exchange for benefits such as subsidized medical education and monopoly protection of the profession (ie, legal protection from competition by nonlicensed practitioners). However, the fact that physicians have social obligations does not mean that they must fulfill those obligations by risking their lives. Many physicians provide other valuable forms of community service, such as by working in medically undeserved areas or providing free care to indigent patients.
Physicians may enjoy high societal status in part because the public expects physicians to act altruistically. Thus, if physicians refuse to work during a pandemic, the medical profession may be perceived negatively. However, physicians who have never undertaken patient care responsibilities should not be penalized solely because of public expectations about the profession in general. Expectations alone do not normally create enforceable obligations.
Some scholars suggest that whether HCPs have agreed to treat patients during infectious disease outbreaks is not the relevant question. Instead, the obligation to work during a pandemic derives from HCPs' specialized skills that "enable [them] to help more effectively, and in greater safety, than the average citizen."
The argument that special skills give rise to special ethical duties has some merit. In contrast to many other countries, US jurisprudence does not recognize a legal "duty to rescue," yet most people would probably agree that a person who is uniquely qualified to save someone's life has a prima facie ethical obligation to do so. For example, few members of the public would deny that a passerby who sees someone lying injured on a deserted road should try to help, regardless of whether doing so is legally required. The moral obligation stems from the fact that a person's life is in danger, a simple intervention like calling for an ambulance would involve minimal burdens, and no one else may be around to help.
However, even the most ardent proponents of the duty to rescue generally agree that individuals should not be required to undertake rescues at significant personal peril. Requiring HCPs to treat patients with contagious infections, in the absence of any preexisting treatment obligations, would violate this principle. Such requirements also could conflict with HCPs' obligations to their other patients or their own families. Moreover, even if the moral obligation to assume risk is considered to be greater than usual during public health emergencies, HCPs are not the only ones whose services will be required during infectious disease outbreaks. Numerous categories of individuals will be essential during a pandemic, ranging from funeral directors to border control agents. The law should not single out HCPs for drastic penalties like license revocations or imprisonment when other individuals whose contributions are equally important are free to refuse to work without similar repercussions.
Penalties for HCPs who refuse to work during an epidemic have not yet been imposed. Rather than relying on punitive measures, policy makers should develop incentives to encourage all essential professionals to volunteer to work during infectious disease outbreaks. For example, governments could create funds to provide hazard pay for individuals who volunteer to work during a pandemic. They also could make it easier to credential individuals to work during emergencies and adopt measures to protect volunteers from criminal or civil liability. Professional organizations can play a role by promoting a spirit of volunteerism, which can be a powerful way of encouraging service without resorting to compulsion. Threatening HCPs with license revocations and imprisonment, even if they have not violated any preexisting treatment obligations, is not the solution.
AUTHOR INFORMATION
Corresponding Author: Carl H. Coleman, JD, Health Law & Policy Program, Seton Hall Law School, One Newark Center, Newark, NJ 07102 (colemaca@shu.edu).
Financial Disclosures: None reported.
Disclaimer: Dr Reis is a staff member of the World Health Organization. The authors alone are responsible for the views expressed in this article, and they do not necessarily reflect the decisions, policy, or views of the World Health Organization.
<!--stopindex-->Author Affiliations: Health Law & Policy Program, Seton Hall Law School, Newark, New Jersey (Mr Coleman); and Department of Ethics, Equity, Trade & Human Rights, World Health Organization, Geneva, Switzerland (Dr Reis).
hat-tip to pseudorandom