Idaho’s new Freedom of Conscience Act took effect July 1, 2010. Under the new law, “[n]o health care professional shall be required to provide [certain] health care service[s] that violate his or her conscience.” (Idaho Code § 18-611(2)). A provider’s “conscience” means “religious, moral or ethical principles sincerely held by the person.” (Id. at § 18-611(1)). If the conscience rule applies, the professional is not required “to counsel, advise, perform, dispense, assist in or refer for any health care service.” (Id. at § 18-611(1)). The health care professional and their employer cannot “be civilly, criminally or administratively liable for the health care professional declining to provide health care services that violate his or her conscience” as provided in the rule. (Id. at § 18-611(4)). Although laudable in theory, the new law may prove problematic in practice given the limits and unresolved issues described below.
- Applicable Health Care Services. By its express terms, the new law only applies to certain “health care services”, i.e., “an abortion, dispensation of an abortifacient drug, human embryonic stem cell research, treatment regimens utilizing human embryonic stem cells, human embryo cloning or end of life treatment and care.” (Id. at § 18-611(1)(f)). In cases involving other forms of care or treatment, the statutory protection in § 18-611 would not apply, and the health care professional would need to comply with other applicable laws and standards when declining or withdrawing from care, including an employer’s internal policies and standards prohibiting patient abandonment. (See, e.g., I.C. § 54-1814).
- Life Threatening Situations. “If a health care professional invokes a conscience right in a life-threatening situation where no other health care professional capable of treating the emergency is available, such health care professional shall provide treatment and care until an alternate health care professional capable of treating the emergency is found.” (Id. at § 18-611(6)). This provision raises several issues. First, the statute does not define “life-threatening situation”. The reference to “emergency” suggests that the limitation was only intended to apply to truly emergent life-threatening situations, but the statute could be read broadly to apply to non-emergent cases, e.g., where a decision must be made to continue or discontinue prolonged artificial life sustaining care. Second, the statute appears to require the professional to continue what they may consider to be morally or ethically objectionable treatment until care can be transferred to another willing provider (i.e., “treat until transfer”). In contrast, Idaho Code § 39-4513 only requires that a health care provider make a “good faith effort” to transfer care before declining to comply with an advance directive due to professional or ethical objections. (I.C. § 39-4513(2)).
- No Discrimination. To comply with state and federal anti-discrimination statutes, the professional may not “refuse to provide health care services because of a patient’s race, color, religion, sex, age, disability or national origin.” (Id. at § 18-611(5)). The prohibition against disability discrimination may prove problematic since health care decisions are inherently based on a patient’s medical or mental status, which may raise disability discrimination issues or arguments under state and federal civil rights laws.
- Employment Protection. The new statute protects employed health care professionals who exercise conscience rights from adverse employment action, but only if the employee takes certain steps to exercise their rights. The employee must provide “advanced written notification” of their conscience right to their employer. (See id. at § 18-611(3)). The statute does not clarify the form or specific timing of the notice, other than to note that “[s]uch notice shall suffice without specification of the reason therefore.” (Id.). If the requisite notification is provided, the employer “shall reasonably accommodate the conscience rights of their employees” (id.), e.g., by reassigning the patient’s care to another willing and qualified provider. Furthermore, the employer may not discriminate against the health care professional based upon his or her exercise of conscience rights “unless the employer can demonstrate that such accommodation poses an undue hardship.” (Id.). The statute expressly incorporates by reference the concepts of “reasonable accommodation” and “undue hardship” as developed under Title VII of the federal Civil Rights Act of 1964. (Id. at § 18-611(1)(h)). Application of the “advanced written notification” requirement may prove problematic since conscience cases may arise in unforeseen situations; it may be difficult for an employee to foresee and provide advance notice of all potential conscience cases. On the other hand, written notice provided hours, minutes, or even seconds in advance of a conscience situation may not give the employer sufficient time to implement “reasonable accommodations” to assist the employee or protect the patient and employer. Thus, the conscience rule may not protect the health care professional or employer in unforeseen, borderline conscience cases.
- Relationship With Other Laws. The new conscience rule does not address apparent conflicts with other laws. For example:a. Advance Directives. As mentioned above, Idaho Code § 39-4513(2) allows a health care provider “who for ethical or professional reasons is incapable or unwilling to conform to the desires of the patient as expressed [in an advance directive] to withdraw” from the patient’s care provided that the provider “makes a good faith effort to assist the patient in obtaining the services of another provider who is willing to provide care … in accordance with the patient’s expressed or documented wishes.” (Emphasis added). In contrast, § 18-611 imposes a higher standard: it requires the health care professional to continue treating until another qualified and willing provider is actually found. It is difficult to reconcile the two standards in life-threatening situations involving advance directives. Arguably, the lower standard in § 39-4513(2) would apply in advance directive situations since it is a more specific statute, but we will need legislative or judicial clarification to know for sure.a. Patient Abandonment. Common law and professional standards generally prohibit patient abandonment. (See, e.g., I.C. § 54-1814(15)). By its express terms, the new conscience rule would prohibit civil, criminal, or licensure actions against the professional when properly invoked, thereby nullifying the concept of patient abandonment in conscience rule cases. (See I.C. § 18-611(4)). It remains to be seen how licensure boards and plaintiff lawyers will respond.b. Withdrawal of Care of Developmentally Disabled Patients. Idaho Code § 66-405(7) generally requires physicians to provide “medically necessary treatment” to developmentally disabled persons “whose condition is not terminal or whose death is not imminent”; the statute does not contain a conscience rule exception. It is not clear whether the new conscience rule would apply in the case of developmentally disabled persons since § 66-405 is, arguably, more specific and may trump the conscience rule statute. We may need legislative or judicial clarification
c. Medically Inappropriate or Futile Treatment. Per Idaho Code § 39-4514(5), health care professionals are not required to provide “medical treatment that is medically inappropriate or futile” despite a patient’s or surrogate decision-maker’s request. “Medically inappropriate” and “futile” are not defined. (See id.). Presumably, a health care provider may decline to provide medically inappropriate or futile care without invoking the conscience rule since, in those cases, it is a matter of professional, clinical judgment, not conscience.
Although a potentially important protection for Idaho health care professionals and their employers, the new conscience rule is not as broad as one might expect. Many questions remain concerning its practical application. Health care professionals should proceed with caution before invoking the statute, especially if the provider is unable or refuses to assist the patient in transferring care to another qualified, willing professional consistent with the standard of care or prohibitions against patient abandonment.
If you have questions about these or other legal issues, please contact a member of our Health Care Group or call 208.344.6000.