Thou shalt not tell to protect patients
Thou shalt not tell to protect patients
Program gets Supreme Court scrutiny
What would your ethics committee do if your hospital ended up defending provider ethics mandates in front of the U.S. Supreme Court?
That’s just what happened recently to a South Carolina hospital — and several professional societies were quick to side with the patients rather than providers who comprise their membership rolls.
Medical professional societies filing briefs with the U.S. Supreme Court include the:
• American Medical Association in Chicago;
• American Public Health Association in Washington, DC;
• American College of Obstetricians and Gynecologists (ACOG) in Washington, DC;
• South Carolina Medical Association in Columbia.
The briefs were in support of South Carolina women who challenged a program developed by Charleston police and physicians at a public hospital there that tested pregnant women for cocaine use without their consent and alerted the police department when they tested positive.
Arguing that such a policy not only violated the women’s civil rights, but discouraged pregnant women with addiction problems from seeking appropriate medical care, many of the groups’ statements reserved special criticism for the health care providers involved.
"Medical professionals were compelled to ignore the ethical mandates of their discipline, the core teachings of their clinical experience, and the scientific data of peer-reviewed research," reads the brief filed by ACOG. "This Court should not countenance an unreasonable, counterproductive, and wholly unnecessary assault on the professional autonomy of treatment professions, the medical privacy of patients, and the furtherance of public health."
Do unborn rights supercede the mother’s?
Pregnant women who tested positive for cocaine at the Medical University of South Carolina in Charleston (MUSC) often were arrested shortly before or immediately after giving birth, some still dressed in hospital gowns and suffering pain and bleeding from childbirth. One woman was handcuffed to her hospital bed throughout her delivery, according to an ACOG statement about the case.
"ACOG and other medical groups urge the Supreme Court to reverse the Fourth Circuit ruling that upheld the policy," the statement reads. "The fact that medical personnel are involved, or that there is a well-intentioned purpose in protecting fetal health, cannot excuse harmful searches conducted without a warrant and probable cause."
Despite the opinions of ACOG and other medical societies, efforts at "fetal protection" that subsume the legal and medical rights of pregnant women to what others deem "best" for the unborn are becoming increasingly common, argues Jean Reith Schroedel, PhD. Schroedel is associate professor and chair of the department of politics and policy at Claremont Graduate University in Claremont, CA, and the author of the recently published book Is the Fetus a Person: A Comparison of Policies Across the 50 States (Cornell University Press; 2000).
"What we are seeing is an increasing effort by fetal rights activists to pursue the reinterpretation of criminal laws that deal with child abuse and child endangerment and make them apply to the fetus," she explains. "In South Carolina, what they were doing was stretching the existing laws on child neglect or distribution of drugs to a minor — essentially redefining the fetus as a person."
In other states, efforts have been made to expand civil commitment procedures to allow for the civil commitment of pregnant women in order to protect her fetus from harm, she notes.
"In the late 1980s, Minnesota passed a law that allowed child-protection authorities to civilly commit a pregnant woman for the duration of her pregnancy," she illustrates. "Essentially, the law allowed the state to take custody of an unborn human organism to protect it, and to take custody of it, you obviously have to take custody of the person who moves with it."
South Dakota and Wisconsin also passed laws allowing the state to take custody of a fetus that had been exposed to either drugs or alcohol, she adds.
A similar legal argument was recently made by Bristol County, MA district attorney Paul Walsh. Walsh sought to detain Rebecca Corneau, a pregnant woman who is a member of a religious sect that rejects modern medicine and the legal system, says Wendy Murphy, a Massachusetts attorney and professor at the New England School of Law in Boston.
The prosecutor was investigating allegations that a number of babies born to sect members had died under mysterious circumstances, Murphy explains. After several male sect members refused to cooperate and answer questions before a grand jury, they were jailed.
Corneau, who also refused to cooperate based on her religious beliefs, was not arrested. Instead, Walsh argued before a juvenile court judge that a guardian ad litem should be appointed for Corneau’s unborn child to ensure that it was born healthy.
The judge agreed and appointed a guardian for the fetus. He also ordered that Corneau submit to a health care examination by a nurse. When Corneau refused to allow the nurse into her home, the judge ordered her commitment, Murphy says. Corneau was detained in state custody from Aug. 31 until Oct. 12, when she gave birth to a healthy baby girl.
"There are a number of things about this case which I find very troubling," says Murphy, who filed a challenge on behalf of another pregnant woman to the legality of the proceeding that detained Corneau.
"First, the judge who did this [appointed the guardian and ordered Corneau detained] did so without subjecting his decision to appellate review, which is routine when an action is so unusual, and this type of interpretation of the law has never been used before. Also, in terms of medical ethics, to me it is unfortunate that a medical professional was willing to play a role in this woman being incarcerated," adds Murphy.
The nurse must have known that Corneau did not want to be examined, but consented to attempt to conduct an exam against her wishes anyway, Murphy claims.
Sources
• Teresa Collett, Professor of Law, South Texas College of Law, 1303 San Jacinto, Suite 321, Houston, TX 77002.
• Jean Reith Schroedel, PhD, Associate Professor, Chair of the Department of Politics and Policy, Claremont Graduate University, Jagel Building 108, 165 E. 10th St., Claremont, CA 91711.
• Wendy Murphy, Professor, New England School of Law, 154 Stuart St., Boston, MA 02116.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.