Sophia Yin, BS1
1 Harvard Medical School, Boston, MA 02116, USA
Correspondence concerning this article and requests for reprints should be addressed to Sophia Yin (sophia_yin@hms.harvard.edu)
ABSTRACT
In the wake of the COVID-19 pandemic, physicians around the world have faced dire personal protective equipment shortages, leading to questions of what the duty to treat is, particularly in the face of such personal risk. Some have called on physicians’ codes of ethics as a basis for their duty regardless of this risk. In this essay, I present a historical perspective of physicians’ codes of ethics in the United States. I discuss the nuances of physicians’ duty to treat as outlined by their codes of ethics, present limitations to these duties, and argue that there exists a reciprocal relationship between physicians and society.
The current COVID-19 pandemic has been devastating. Of great concern to healthcare providers around the world has been the lack of personal protective equipment (PPE), which has placed many healthcare providers at substantial risk. In the U.S., the CDC’s PPE guidelines allow using facemasks “beyond the manufacturer-designated shelf life during patient care activities” and even using bandanas and scarves as a last resort [1]. As many healthcare workers on the frontlines have begun speaking out about their fears, some have received criticism. Do physicians have a duty to treat despite personal risk, particularly in situations with limited PPE? Many call on codified ethical obligations as support. However, these notions of duty are nuanced.
The duty to care for the sick is embedded in physicians’ codes of ethics. This can be found in the 1847 Code of Ethics of the American Medical Association (AMA), the first national code of medical ethics in the United States, which stated “when pestilence prevails, it is their duty to face the danger, and to continue their labors for the alleviation of suffering, even at the jeopardy of their own lives” [2]. However, codes of ethics are dynamic and change throughout time. Through the early half of the 20th century, the duty to treat became less strict. By 1957, the AMA’s code stated that physicians should “render service to the best of [their] ability” during emergencies [3]. Even this was removed by 1977 [3]. However, as a result of the HIV pandemic in the 1980s, the duty to treat was restored in many ethics standards [3]. This was bolstered with legal support in Bragdon v. Abbott (1998), when the Supreme Court ruled that persons with HIV/AIDS are considered persons with disabilities and thus are protected by the American with Disabilities Act (ADA) [4]. However, the Court also ruled that it does not force caregivers to treat an "individual [who] poses a direct threat to the health or safety of others," defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services” [4].
HIV, however, is not a readily transmissible virus. A report by the Centers of Disease Control and Prevention (CDC) from November 2016 reported that the cumulative total number of cases of confirmed occupational transmission of HIV to healthcare workers in the United States was 58 cases, and the risk of infection by needlestick injury involving HIV-infected blood is less than 1% [3]. Even before the advent of anti-HIV drugs, the risk to healthcare providers was not high. Thus, much of these refusals to treat may have been rooted in bias towards groups of people considered high risk for infection rather than legitimate concerns about risk. The strengthening of these duties to treat thus served an important role in combatting these biases. However, more recent threats of serious infectious diseases, including COVID-19, provide a characteristically different threat than the HIV pandemic because of their ability to spread with a speed and potential to overwhelm a healthcare system [5]. With potentially greater risk of transmission, these have created new questions surrounding the duty to treat.
Currently, according to the American College of Physicians Ethics Manual: “Physicians take an oath to serve the sick. Traditionally, the ethical imperative for physicians to provide care has overridden the risk to the treating physician, even during epidemics…The social contract between medicine and society also requires physicians to treat all in need of care” [6]. The AMA “social contract with humanity” oath adopted in 2001, states “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” [5]. The current AMA Code of Medical Ethics’ Opinion on Physician Duty to Treat states: “Because of their commitment to care for the sick and injured, individual physicians have an obligation to provide urgent medical care during disasters. This ethical obligation holds even in the face of greater than usual risks to their own safety, health or life” [7].
Though codes espouse an ethical obligation to treat, they themselves provide limits to this duty. Like other “special positive duties,” the ethical obligation to treat is considered a prima facie obligation, which has ethically justified limits. The person providing aid is not obligated to take on any and all risks and can even be obligated to not to take on certain risks, depending on the source of the duty and presence of conflicting duties [8]. These limits “originate in the professional virtue of self-sacrifice, which creates the ethical obligation to accept only reasonable risks to oneself in order to fulfill beneficence-based ethical obligations to patients” [2]. While physicians duties often center on self-sacrifice, “self-sacrifice does not create an ethical obligation to accept unreasonable risks in patient care and organizational policy should make this clear” [2]. The AMA code acknowledges this, stating: “The physician workforce, however, is not an unlimited resource; therefore, when participating in disaster responses, physicians should balance immediate benefits to individual patients with ability to care for patients in the future” [2]. It is unclear specifically where this balance lies, and who should be making this decision.
The current ethics manuals also reference a social contract between medicine and society. This would imply that if doctors have a duty towards society, conversely, society must also have an obligation to physicians. For example, the ACP Ethics manual also states: “Physicians can and should expect their workplace to provide appropriate means to limit occupational exposure through rigorous infection-control methods” [6]. As we have seen in the COVID-19 epidemic, this has not necessarily been held true in the case of massive PPE shortages in some places. Current evidence shows that with effective infection control, the risk of infection with COVID-19 from patients is low and should thus not be feared, however, “the risk of infection without effective infection control does not minimize risk” and “in such clinical circumstances, medical faculty and learners are justified to fear infection” [2]. This scope of this risk also is not limited to the individual, but rather extends to “others whom medical faculty and learners have an ethical obligation to protect, such as family members, friends, and neighbors” [2].
Updated April 14, 2020, the AMA Code of Medical Ethics began a series specific to COVID-19 medical ethics guidance. In it, they addressed whether physicians can “ethically decline” to provide care in the case of unavailable PPE. They justify that some circumstances, such as an underlying health condition that put them at “extremely high risk for a poor outcome should they become infected” is justified [6]. It is not explicit, however, which conditions this includes, whether this factors in duties that this risk might extend to (e.g., family, friends, neighbors), and who would make that ultimate decision. In addition, permitting some physicians but not others to opt out of a duty to treat could be problematic. If some opt out, this thereby increases the risks to their colleagues, which “would encourage more physicians to opt out, increasing the risks even further and leading even more physicians to opt out,” potentially triggering a self-reinforcing cycle of physician withdrawal that ultimately would defeat the duty [3].
Physicians’ oaths and codes of ethics have been historically and currently used as evidence of physicians’ duty to treat in the case of pandemic. However, the extent to which physicians are obligated by their codes is unclear. The duty to treat is a prima facie obligation, and both limits to this duty and the ability to ethically decline is outlined in the codes. However, what has resulted is that many physicians have volunteered from a private, personal sense of obligation. As Danielle Ofrie wrote in a recent op-ed, “For most doctors and nurses, it is unthinkable to walk away without completing your work because dropping the ball could endanger your patients” but continuing the historical practice of “counting on nurses and doctors to suck it up because you know they won’t walk away from their patients is not just bad strategy. It’s bad medicine” [9]. Volunteering in the face of this increased risk is “a superogatory—and hence particularly praiseworthy—act” [10]. However, this cannot be an act that comes with praise and little else. Physicians must have access to gowns, masks, and other personal protective equipment; we must take steps to strengthen public health infrastructure; and we should ensure financial benefits to providers and their families in the event of disability or death [3]. If there exists a social relationship in which physicians willingly assume risks to treat, there must be an expectation by society to reduce the risk.
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