Physicians have a history of antagonism to the idea that they themselves might present a health risk to their patients, but in a post-Covid era this may present an ethical dilemma, write Doron Dorfman, Mical Raz and Zackary Berger.
Earlier this year, the American federal government ended the Covid-19–related public health emergency, with the US Centres for Disease Control and Prevention (CDC) no longer recommending routine universal masking in most healthcare settings – the consequences raising some dissent among vulnerable groups who fear health risks.
A number of clinicians and staff at hospitals, clinics, and nursing homes countrywide have stopped regularly wearing masks, which might, write Dorfman, Raz and Berger in JAMA Network, result in conflict when immune-compromised patients – or those with other risk factors that increase their susceptibility to Covid-19 and its complications – seek healthcare.
In theory, the solution should be simple: patients who wear masks to protect themselves, as recommended by the CDC, can ask staff and clinicians to wear a mask as well when seeing them, and the clinicians would oblige, given the efficacy masks have shown in reducing the spread of respiratory illnesses.
However, disabled patients are reporting that physicians and other clinical staff are sometimes refusing to wear a mask when caring for them.
Although it is hard to know how prevalent this phenomenon is, what recourse do patients have? How should systems approach staff who refuse to mask when treating a disabled patient?
Physicians have a history of antagonism to the idea that they themselves might present a health risk to their patients.
Famously, when Hungarian physician Ignaz Semmelweis originally proposed hand-washing as a measure to reduce purpureal fever, he was met with ridicule and ostracised by the profession.
Physicians were also historically reluctant to adopt new practices to protect not only patients but also physicians themselves against infection in the midst of the Aids epidemic.
In 1985, the CDC presented its guidance on workplace transmission, instructing physicians to provide care, “regardless of whether HCWs [health care workers] or patients are known to be infected with HTLV-III/LAV (human T-lymphotropic virus type III/lymphadenopathy-associated virus) or HBV (hepatitis B virus)”.
These guidelines offered universal precautions, common-sense, non-stigmatising, standardised methods to reduce infection. Yet some physicians bristled at the idea that they need to take simple, universal public health steps to prevent transmission, even in cases in which infectivity is unknown, and instead, advocated for a medicalised approach: testing or masking only in cases when a patient is known to be infected.
Such an individualised approach fails to meet the public health needs of the moment.
It is the patients who pay the price for physicians’ objections to changes in practices, whether it is hand-washing or the denial of care as an unwarranted HIV precaution.
Yet today, with the enactment of disability anti-discrimination law, patients are protected, at least on the books.
We argue that patients also have the right to request and require those treating them to wear a mask when caring for them, as a reasonable disability accommodation, even if their facilities have ceased doing so universally.
Masking as a disability accommodation in healthcare settings should be recognised as part of physicians’ ethical obligations.
Access to healthcare is a particularly fraught issue, as people with disabilities often require more frequent and specialised care than non-disabled individuals.
Physicians have an ethical responsibility to promote the well-being of their patients and do no harm. Wearing a mask on a disabled patient’s request to protect them from contracting Covid-19, which could be deadly for that patient, squarely fits within physicians’ ethical obligation to provide for patients’ care and to ensure their ability to safely partake in health-care settings.
Disability accommodations are an individualised legal remedy aimed at allowing full and equal access for disabled individuals in all areas of life, including access to healthcare facilities and services.
The accommodation mandate includes allowing “appropriate adjustment or modifications of…policies”, which in this case would be wearing a mask on request from the patient.
According to the US Supreme Court, to determine whether wearing a mask when treating a disabled patient could be a reasonable accommodation, the patient needs to show that the accommodation is “reasonable on its face, i.e., ordinarily or in the run of cases”.
Using masks in certain settings was well established even before the pandemic, which has made them even more commonplace and less expensive, essentially used ordinarily, and through the run of cases.
Therefore, masking could not be argued to be an undue hardship on the physicians and the staff at facilities.
Thus, we have a legal framework (patients have the right to request accommodations) coupled with an ethical one (physicians should protect vulnerable patients).
How can we bring these to bear to address this phenomenon of physicians refusing to mask? The fragmented landscape of physician employment, whereby most doctors are employed by healthcare groups (either owned by the physicians themselves or by hospitals) and others employed directly by hospitals, makes it difficult to regulate physician behaviour.
Accordingly, we believe this issue requires discussions by relevant regulatory bodies, including state medical boards and speciality boards, credentialing boards of hospitals, and relevant agencies.
We also realise such changes will not occur without advocacy on the part of patients themselves and their communities.
Starting with medical boards, physicians should be made aware of their legal obligations toward disabled patients regarding masking as an accommodation.
Administrative, ethics, and credentialing committees within hospitals should set and enforce rules requiring physicians and staff to mask up if asked to do so by a disabled patient.
Relevant agencies should also step in, promulgating guidelines to physicians and hospitals on the importance of disability accommodations.
Recognising ethical duties and legal rights is an important first step in developing a framework that accommodates patients with disabilities now that universal masking is no longer the norm in many clinical settings, and in particular, as Covid-19 cases are again on the rise.
Doron Dorfman, LLB, JSD: Seton Hall University School of Law, New Jersey;
Mical Raz, MD, PhD: University of Rochester Medical Centre, Department of Medicine, New York;
Zackary Berger, MD, PhD: Johns Hopkins School of Medicine, Maryland.
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