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First published in Hospitals & Health Networks OnLine, August 3, 2004
Efforts to force health care providers to perform law enforcement duties cast a threatening pall over the patient-physician relationship.
This past May, the U.S. House of Representatives defeated a bill, HR 3722, by the lopsided vote of 331-88. Everyone in health care should be relieved. Why? Because this proposal, sponsored by Rep. Dana Rohrabacher, R-Calif., would have forced the staff at any hospital that accepts federal funds for the care of undocumented immigrant patients to get into the law enforcement business. Hospital staff would first have been required to ask patients if they are U.S. citizens. If the answer was "no" (which is also true of legal U.S. noncitizen residents), the staff would then have had to collect data on the patient’s immigration status, home address and employer; take the patient’s photograph; and collect his or her fingerprints or use another "biometric indicator" designated by the federal government. The hospital would have to turn all this information over to the Department of Homeland Security, which could then initiate deportation proceedings if the patients proved to be undocumented.If you think this sounds like a slightly inappropriate use of physicians’ and nurses’ skills and time, you are hardly alone. A vast array of organizations ranging from business groups to Latino activists to hospital associations opposed the measure; more than one critic pointed out that the bill was considered by the House only because Congressman Rohrabacher made that a condition of his vote in support of last November’s Medicare legislation. Even the Wall Street Journal--hardly the world’s most liberal publication--ran an editorial condemning HR 3722. Supporters of the measure claimed that "big business" opposed it only because employers have many undocumented workers to whom they do not provide health insurance.
Indeed, there were varied motivations for supporting or opposing the bill. Rohrabacher was upset that the Medicare legislation provided $1 billion to hospitals for care of undocumented patients. Many members of Congress are concerned--especially in an election year--about the unceasing flow of illegal immigration. Business interests may well have wanted to protect the pool of undocumented (and usually underpaid) employees. Hospital professionals hardly need something else to do in the emergency department.
However, another cumbersome regulatory burden or a threat to the availability of cheap labor is not why this proposal should have sent chills down the spine of everyone in health care. The most onerous implication of this bill was stated in the Wall Street Journal editorial: It amounted to "deputizing caregivers." As C. Duane Dauner, president of the California Healthcare Association, told the Los Angeles Times, "Nurses and doctors are in the business of saving lives, not acting as agents for the Border Patrol."
Unfortunately, this is not the first time this sort of thing has come up. One watershed event occurred in 1982, when an Indiana infant, known only as Baby Doe, was born with Down syndrome and a serious but operable condition of the esophagus. The parents declined the necessary surgery. The hospital administration and several physicians and anti-abortion groups went to court to have the parents’ decision overturned; they failed, and Baby Doe died of starvation nine days after birth.
This case caused a furor, and the Reagan Administration almost immediately launched an initiative to prevent a repeat occurrence. Citing the 1973 Rehabilitation Act, which prohibits discrimination against the disabled, the Department of Health and Human Services issued what became known as the Baby Doe regulations, which, among other things, prohibited anything short of aggressive treatment for all newborns, no matter what their health status was.
The regulations also required hospitals to post notices about a federal telephone hot line for reporting of any suspected nontreatment. Reported allegations were then investigated by federal Baby Doe squads that, in the words of one observer, "interrogated physicians, nurses and other personnel and reviewed confidential hospital records." That led, in turn, to another round of protests. The regulations were struck down by the U.S. Supreme Court in 1986 because, in the court’s opinion, they violated the autonomy of the states.
It was a harrowing episode, especially for physicians. As George Annas, chairman of the Department of Health Law, Bioethics and Human Rights at Boston University, wrote at the time, "No wonder pediatricians are upset. Seeing themselves, and having been seen by society, as the primary health care advocates for children, they are disheartened and insulted to be told now that the federal government no longer trusts them not to abuse their patients." And, one might add, encourages their colleagues to rat on them to the feds.
Involving physicians and nurses in police work went much further in South Carolina, beginning in 1989, when the hospital of the Medical University of South Carolina began requiring staff to surreptitiously test the urine of pregnant women for the presence of cocaine. Should a woman test positive, she could be arrested at the time of birth on charges of child neglect.
In the five years that the policy was in effect, 253 women tested positive. Of these, 30 were arrested--some taken out of the hospital chained and shackled--and two were sentenced to prison. The penalties fell most harshly on--surprise!--low-income minority women; of the 30 who were arrested, 29 were African-American and the sole white woman was living with an African-American man. The nurse who had the authority to decide their fate believed that "race mixing" was "against God’s will." Even the hospital’s general counsel was uneasy about the program, writing to the state attorney general that he thought the women should give formal consent for the drug testing, that state social services agencies, rather than the police, should be informed of positive tests, and that "the main prosecutions have been against black indigent mothers."
Ten of those mothers sued the hospital, winning a 6-3 decision from the U.S. Supreme Court in 2001. The justices ruled that the testing was a violation of the Fourth Amendment to the Constitution, which protects against unreasonable search and seizure. However, three justices dissented, including Justice Antonin Scalia, who argued that it is perfectly appropriate for physicians to gather evidence for the police. He added, "Information obtained through violation of a relationship of trust is obtained consensually, and is hence not a search." He compared the situation to the fact that police can lie to a suspect in order to obtain a confession. Fortunately, he was in the minority.
Obviously, these are deep waters. The parents of Baby Doe were within their rights, legally, although many would question both the wisdom and the humanity of their decision. The South Carolina drug testers were trying to protect infants--some infants, anyway--from the negative effects of cocaine (although, interestingly, the program did not test for alcohol or nicotine, both of which have highly deleterious effects on fetuses). Also, there is a long history of requiring health care professionals to report certain conditions to the authorities. These include sexually transmitted diseases, certain infectious diseases, and suspected abuse of children or vulnerable adults.
Furthermore, mental health professionals in most states are subject to what is generally known as the Tarasoff decision. This, too, was a difficult case. In 1969, a University of California student told his psychotherapist that he planned to kill a young woman, Tatiana Tarasoff, who had spurned his romantic advances. The therapist notified the police, who detained the patient but chose not to commit him after he promised to stay away from Tarasoff. He killed her two months later. Her parents sued the therapist for failing to warn their daughter of the danger she was in. They lost at first, but their appeal was upheld by the California Supreme Court. Subsequently, many other states instituted a rule of "duty to warn," that is, any therapist whose patient makes a sincere threat against another person must warn that person.
It’s tricky because, as some therapists argue, the warning may not prevent mayhem; the presumed target can ignore the warning. And many therapists are loath to go further and tell the police about information given to them in confidential therapy sessions. Nonetheless, Tarasoff warnings are the law in many states.
So what’s the difference? Why split hairs between investigating suspected illegal immigration status and reporting the presence of syphilis? There is a huge difference, and any attempt to blur it compromises the honor of health care.
The reporting requirements to which physicians and nurses are subject involve threats to general public health. Infectious diseases are deemed infectious because other people can catch them easily; if someone living in a crowded city has tuberculosis or SARS, public health authorities need to be informed in order to prevent an epidemic. Given the current threat of bioterrorism, this form of reporting is justified. And although the abuse of a child or a wife may not pose a risk to the health of the general public, it represents a proven threat to individual life and limb, and its reporting can be justified (although there has been dreadful misuse of such reporting that has damaged many lives and even led to the suicide of an innocent person accused of abuse). Tarasoff warnings fall into a similar category; if the threat is real, this person’s life is in danger.
The difference between these violations of patient confidentiality--and they are violations, make no mistake--and the kind of thing that went on in South Carolina or could have gone on if Rohrabacher’s bill had passed is that reporting what you see is one thing; conducting search and seizure on a person’s body, or collecting evidence for the feds in a fishing expedition for immigration status, is something else again. Rape treatment teams collect evidence of rape; they don’t go looking for the rapist. Telling the appropriate agency that a child is covered with cigarette burns is different from telling a pregnant woman that you are conducting a routine urine test when you are really investigating her possible use of cocaine.
Many health care professionals are less than thrilled with the reporting that is required by law; it puts them in a compromised position, and I understand that. But the tradition of public health is that sometimes, in narrow circumstances, the interest of the society must supersede the interest of the individual--but only when society itself is at risk.
Indeed, generally, society gets very nervous about forcing health care professionals to act against their consciences. No physician or nurse can be (or should be) required to participate in an abortion. No physician or nurse can be (or should be) required to participate in an assisted suicide, even in Oregon, the only state where the practice is legal. And when lethal injection became the fashionable mode of executing prisoners, and states sought to make doctors the executioners, physicians, individually and collectively, protested so vociferously that the proposals were dropped.
There are three morals to this story. The first is that health care professionals must, as a rule, protect the confidentiality and dignity of their patients whenever it is possible. The second is that when there are exceptions to this rule, they must be narrow and utterly necessary. The third is that physicians and nurses have a different job than cops, and we should never confuse their job descriptions.
The implications of a proposal like the Rohrabacher bill are profound. In terms of public health, it could lead many sick patients to turn away from the health care system, thus threatening their own lives and potentially creating pools of epidemic disease. In terms of health care ethics, it would taint the most critical and fragile relationship of all, that between patient and caregiver. No amount of money, no ideological fixation, not even a concern for someone’s health justifies eroding that bond, which is already under stress. For if it is shattered, it cannot be pieced back together.
Congressman Rohrabacher says that his bill "will live to fight another day." And 88 members of Congress voted for it. Watch what happens, for all of our sakes.
First published in Hospitals & Health Networks OnLine, August 3, 2004