Commentary

Discrimination, Dignity, and Duty

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This spring, Tennessee became the first state in the union to pass legislation that gives a mental health care professional the right to refuse to see a patient based on “sincerely held principles.” HB 1840 reads:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.1

Although Tennessee was the first, many other states have enacted similar laws over the past year, which critics believe represent discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals.2

In Tennessee, a late amendment substituted “sincerely held principles” for “sincerely held religious beliefs.” The change from religious beliefs to principles may seem to attenuate the most discriminatory aspects of the law, while actually expanding both its application and acceptance. Although most civil rights advocates believe the law was designed to target LGBT individuals, “sincerely held principles” could potentially affect veterans and active-duty service members (ADSMs) with any socially stigmatized condition or circumstance from domestic violence to addiction.

No doubt, we will see the law’s constitutionality argued in court. We do know that the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution states that the federal constitution and laws take precedence over state laws and constitutions.3 Not being a lawyer, I cannot opine on how this particular piece of legislation will interact with federal law. But as a physician and an ethicist, I can say that it challenges the foundational commitment of all health care practitioners to place the good of the patient above all other considerations.

In an interview shortly before signing the law, Tennessee governor Bill Haslam discussed his decision-making process. It is “all about values,” he said, “therapists cannot and should not be expected to leave those values out of their work.”4 The governor’s statements are based on a fundamental misunderstanding of the ethical obligations and values intrinsic to the health care practitioner-patient relationship.

As citizens and human beings practitioners are entitled to hold any beliefs, preferences, and principles. But it is the respect for patient’s beliefs, preferences, and values over and above those of the practitioner that make health care practice a profession. Professional relationships in health care are not like those in commerce or industry, entertainment, or advertising; these relationships are of a special fiduciary nature that mandates a duty to care that is expressed in both ancient and modern ethical codes.

The American Counseling Association specifically mentioned its ethics code in the organization’s response to the Tennessee legislation. “HB 1840 is an unprecedented attack on the American Counseling Association’s Code of Ethics, something to which nearly 60,000 counselors abide.”5 In addition, more than half a million counselors and thousands of social workers, physicians, nurses, and pharmacists also abide by codes of ethics, professional principles, and organizational policies contained in provisions explicitly prohibiting the clinician from discriminating against any patient. The American Medical Association, for example, states:

A physician may decline to undertake the care of a patient whose medical condition is not within the physician’s current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination.6

Governor Haslam reportedly signed the law once it addressed 2 of his concerns.7 The first was that the bill must require that practitioners who object to treating LGBT patients or any other patient on principled grounds refer them to another counselor. Undoubtedly, this requirement is of little comfort for those denied mental health care that live in small communities. Many of these communities already face shortages of mental health professionals and higher levels of prejudice and ostracism, which the law will only amplify.

The second provision insisted on by the governor required a counselor to continue treating a patient if the patient is a danger to himself or herself or others. This provision hardly seems exculpatory when we consider that LGBT military and veteran populations already have higher risks of suicide and struggle to access mental health care, problems the DoD and VA are addressing.8 A referral cannot psychologically mitigate or ethically defend the devastating impact of having a therapist refuse help to an already wounded and isolated patient and may well trigger a suicide attempt.

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