Mandating Disclosure of Conscience-Based Limitations on Medical Practice
57 Pages Posted: 24 Jul 2015 Last revised: 16 Sep 2017
Date Written: July 23, 2015
Stakeholders in law, medicine, and religion are unable to reach consensus as to how best to address conflicts between physicians’ religious objections to treatment and patients’ rights to access medically indicated care. Conscience laws that protect objecting health care providers from liability are criticized as too broad by patient advocates, and as too narrow by defenders of religious freedom. This Article posits that some of the tension between these stakeholders could be mediated by statutory recognition of a duty to disclose religiously-motivated limitations on practice. Imposition of such a limited disclosure duty has foundations in consumer protection law, fiduciary law, and informed consent law. While this solution would not guarantee a patient’s access to treatment, referral, or information from any given provider, it would prevent some of the more egregious cases of denial of treatment – those where patients are not made aware that a medically-indicated treatment is excluded from a provider’s (or institution’s) scope of practice, and so have no opportunity to seek care elsewhere.
[SSRN version posted is a pre-publication draft]
Keywords: conscience, conscientious objection, religion, informed consent, disclosure, consumer protection, fiduciary duty
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