Legal Requirements for Notification

A 30-year-old man comes to the emergency department claiming that he has been shot. He states that he is willing to undergo emergency tests and treatment only if the physician agrees not to call the police and that he will leave the emergency department if the physician does not promise this.

The patient walked into the department, and he seems capable of walking out under his own power. Gunshot wounds are potentially, but not always, fatal. The victim refuses to say where the wound is, and based on this limited data, the physician must make his decision.


Commentary

The emergency physician in this case has the following alternatives:


A. Convince the gunshot victim that he should allow the physician both to treat his wound and to inform the police.

B. Forcibly restrain the victim, treat his wound, and inform the police.

C. Insincerely assure the victim that she will not report the wound, treat the injury, and then report it to the police.

D. Agree to treat the wound but not inform the police.

E. Not treat the victim and not report the incident to the police.

F. Not treat the victim but report the incident anyway.


Clearly, Option A is the best alternative, but it may not be possible to carry it out if the victim resists persuasive efforts. If Option A is unavailable, which of the remaining choices would be the best course of action, and why?

MORAL AND FACTUAL CONSIDERATIONS


Several moral considerations have immediate bearing on the physician's choice. First, the physician is in a position to provide the victim with a good in the form of restored health (insofar as it can be restored). Second, while there is a moral and legal presumption in favor of confidentiality between physician and patient, this has been legally abrogated (in most or all states) by a "reporting" law requiring physicians to inform police about injuries, such as gunshot wounds, that are likely to have arisen as a consequence of criminal acts.

The purpose of such laws is, broadly speaking, either to procure the arrest and conviction of the criminals responsible for these acts or to protect innocent parties who might be injured in the future. Such laws serve legitimate state purposes. On the other hand, they may discourage some wounded persons from seeking medical aid.


Because of this "chilling effect" and the essential nature of medical services, it would be unfortunate if medical institutions were to become, in any sub­stantial way, an extension of the police power of the state. Fourth, the physician has a moral obligation to obey any law that serves a valid state purpose. Fifth, if the physician violates the reporting law in this case, she risks being subjected to legal sanctions herself.

Punishments for such violations tend to be minor, compared to those for other offences (for example, in Arizona the maximum prison sentence is 30 days). But such a punishment would represent a substantial financial loss to the physician and might result in dismissal from her position or revocation of hospital privileges. Thus if the physician treats but fails to report this wound, she may do so at some personal cost.

Few relevant facts are known. It seems probable that the victim's wound is more than superficial, since his aversion to having it known by the police would have en­couraged him to treat it with home remedies if the wound had appeared trivial. On the other hand, the victim's ambulatory state and attitude toward treatment indicate that he believes, possibly with good reason, that the wound is unlikely to be immediately fatal.

We can make only limited guesses about why the victim does not want the incident to be reported. Perhaps he wants to protect a relative or friend who fired the gun or to protect himself if the wound was self-inflicted by an unlicensed or stolen gun. Or he may wish to avoid contact with the police because of unrelated shady dealings in his life. Or he himself may be innocent of any wrongdoing, but he may wish to avoid retaliation by his attacker(s) if the case is reported.


The source of his reluctance could make a difference as to how willing the physician should be to accede to his request. Finally, since so little is known about the victim or his circumstances, it is difficult to predict whether the physician's disposition of this case might produce a flurry of similar requests on the part of future gunshot victims.

Before we scrutinize the options themselves, one more thing should be pointed out. We can distinguish two different sorts of reporting laws. An attention law requires the physician to report any gunshot wound that comes to her attention in the course of her practice; a treatment law only requires the physician to report a gunshot wound that she treats. (Arizona law is neatly ambiguous between these two groups, stating that "a physician ... called upon to treat any person for gunshot wounds ... which may have resulted from a ... unlawful act, shall immediately notify the chief of police ..." Has the physician in the discussion case been "called upon to treat" this wound or not?)

The victim obviously assumes that the relevant law is a treatment law, so that the physician is only required to report his wound if she actually treats it. For brevity in the following discussion, I will join him in this assumption. However, appli­cability of the Attention Law would make a difference in assessing some of the physician's options. Let us consider the physician's alternatives.

OPTION B: RESTRAIN THE VICTIM, TREAT HIM, INFORM POLICE


Option В is clearly morally impermissible. It is true that the physician could achieve the good of health for the victim by forcibly restraining and treating the victim and then calling the police. But it should be remembered that it is only legally — and morally — permissible for the physician to treat the victim if the victim consents to be treated. If the victim had chosen to remain at home and treat his wound with home remedies, it would not have been permissible for the physician to intervene and force medical treatment or hospitalization on him, even if his life were at stake.


By the same token, it is not permissible for the physician to force treatment on the unconsenting victim inside the emergency room, even if his life is at stake. Nor can the physician claim that forcing treatment on the victim is the only way to satisfy her moral obligation to obey the reporting law, since if she does not treat the victim, she is not legally required to report his wound (under a treatment law), and so does not violate her duty to obey the law if she does not report it. Option В must be dismissed.

OPTION C: LIE TO THE VICTIM, TREAT HIM, INFORM POLICE


Option С involves insincerely assuring the victim that the police will not be called; treating him and then calling the police. This option also achieves the goal of restored health for the victim, but it violates two stringent moral demands. First, it requires the physician to make an insincere promise (or to lie). Second, like Option B, it requires the physician to treat the victim without his consent. This requirement may be less obvious than if the physician physically were to force treatment on the victim.

But the victim only consents to treatment on the condition that the police not be informed. Since this condition is not met, consent has not genuinely been obtained, just as consent has not genuinely been obtained for a kidney removal, agreed to on condition the kidney is cancerous, if in fact the kidney is healthy. There is no great moral difference between Options В and C; physically forcing a person to undergo unconsented-to treatment is not much worse, if at all, from deceiving him into undergoing such treatment.


This assessment of Option С might be argued against on two grounds. First, it might be maintained that the moral position of the victim is weak: at the very least he is demanding that the physician violate the law. Second, he himself may have violated the law (if, for example, he received the wound in the course of some criminal activity).

Hence it could be argued that he does not deserve full moral respect, so that it is morally permissible to violate his rights (for example, the right not to be lied to and the right to be treated only on condition he consents) in order to secure the moral good of preserving his health. I would reject this line of thought. First, the physician cannot be certain that the victim has himself committed any criminal act at the time the wound was inflicted — he may be entirely innocent.

Second, while it is true that the victim is attempting to induce the physician to violate the law, this in itself does not seem sufficient grounds to abrogate respect for his right not to be duped or forced into unwanted treatment.

Second, it might be argued that it would not really be wrong for the physician to break a promise to the victim not to call the police, for when a person promises to do something morally (or legally) wrong, he or she creates no moral obligation to perform the promised act.


For example, if the physician promised a mobster to murder one of her patients (an important witness), that promise would create no obligation on her part to follow through, since the promised act is wrong from the beginning. Sim­ilarly, it might be claimed the physician would be morally "safe" to falsely promise the victim not to call the police. Since the promised act would be morally and legally wrong from the beginning, her promise would have created no obligation to carry through.

This argument, so far as it goes, is correct. The physician's insincere promise to the victim would not create an obligation not to inform the police. However, she would have been wrong to make such a fraudulent promise in the first place. This is the moral wrong, not her violating the promise once made. Our former conclusion stands, then: Option С should be rejected.

OPTION D: TREAT THE VICTIM, DO NOT INFORM POLICE


Option D involves the physician's acceding to the victim's conditions by treating him without reporting the wound to the police. This option secures the good of restoring the victim's health at the moral cost of violating the obligation to obey the law. Although it avoids any violation of the victim's rights, it does render the physician vulnerable to possible legal sanctions if the incident comes to the attention of police or hospital authorities.


Assessing this option requires us to weigh the good to be achieved against the disvalue of violating the law and the possible personal cost to the physician of carrying it out. In weighing these factors it is important to remember that physicians are not under a general moral duty to provide the good of health whenever and wherever they can. Such a duty would place too great a burden on them. Except in limited circumstances (for example, when a physician has already accepted someone as her patient), providing medical care is, at most, a morally gratuitous act which that physician may or may not choose to perform.

That the physician who follows Option D would be providing medical care at the cost of violating the law and exposing herself to some personal sacrifice means that this act cannot be the duty of the physician. At most, it is a morally gratuitous act which she is free to perform or to refuse. Whether or not it is even a morally good act depends on circumstances which she cannot know: how serious the wound is, whether it is treatable, whether it was inflicted by a criminal whom it is important to apprehend before he commits worse atrocities, whether penalties will be imposed on her for not reporting the wound, and so forth.


We can only conclude that Option D may be a morally permissible act. If there is no important criminal to apprehend, and treating the victim would save his life, Option D is a good but not obligatory act. On the other hand, if apprehending the criminal is important, Option D may instead be wrong.

OPTION E: REFUSE TO TREAT THE VICTIM, DO NOT INFORM POLICE


Option E involves the physician's refusing the victim's conditions: she neither treats him, nor reports his wound to the police. This option clearly fails to promote the good of restoring the victim's health, but the physician has no strict moral obligation to promote this good, since the victim does not consent to it, and the victim himself is willing to accept this result.

And pursuing Option E does not require the physician to violate any positive duty, either the duty only to treat a consenting patient, or the duty not to make fraudulent promises, or the duty to obey the law. It is true, however, that while the physician does not violate the letter of the law, she does fail to promote the purpose of the law: in not reporting the wound, she is not facilitating the appre­hension of criminals or the prevention of further criminal activity.


But she has no strict obligation to do this; at most it is a gratuitously useful act which she (like any citizen) is free to do or not to do. And given the disadvantages of having medicine become an extension of the police power of the state, one hesitates to say that it would be morally desirable for the physician to report the wound when not formally required to do so. Thus Option E appears to be a morally acceptable choice for the physician.

OPTION F: REFUSE TO TREAT THE VICTIM, INFORM POLICE


The disadvantages of having the physician report the wound when not formally required to do so help us rule out Option F as inferior to Option E. Option F involves the physician's not treating the wound but reporting it to the police nonetheless.


Such a report not only entangles the physician unnecessarily with police activities but also is unlikely to accomplish a great deal in the way of criminal apprehension or crime prevention, since the untreated victim will hardly have provided the physician with crucial identifying information. Nothing is gained by this option, and a good deal may be lost. (Of course, this assessment may change if new information comes to light later on; for example, a significant crime is reported in which it seems probable that the victim was involved.)

A DIFFERENT SCENARIO


It is worthwhile to call attention to one further possible variant on this case which the physician might have to face. Suppose the physician refuses to treat the victim in accordance with his stipulations, and the victim walks out of the hospital and then collapses outside the emergency department. He is brought back, unconscious, by personnel unacquainted with the case.

What should the physician do at this point? It might be tempting to conclude that the physician should treat the victim and also inform the police, on the ground that the victim's state requires medical assistance, the victim himself (being unconscious) does not withhold consent from treatment, and the law requires the wound to be reported. But this line of thought is inadequate. The physician already knows, by virtue of her previous interview with the victim, that he does not consent to treatment in conjunction with informing the police.


That refusal to consent covers the present circumstances as well as the earlier ones. For the same reason, a physician cannot argue that a Jehovah's Witness, who has previously refused all blood transfusions, may be transfused now that he is unconscious and cannot withold consent. The prior refusal of the Jehovah's Witness to consent governs the present circumstances, and so does the prior refusal of the gunshot victim.

On the other hand, we can hardly recommend that the physician eject the victim onto the street in his unconscious state. Here it appears that the only acceptable course of action for the physician is to treat the patient without informing the police, at least until the patient has regained consciousness and is able to decide whether to leave the hospital or accept a police report.

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