January 1987 VIII/S
PHYSICIANS: HEALERS OR OFFICERS OF THE COURT?
The patient arrives in the emergency room, dazed, badly injured, and accompanied by a policeman. The policeman insists that the attending physician draw blood from the accident victim in order to evaluate whether she was driving while intoxicated. The patient resists having blood drawn. Should the emergency room personnel immobilize the patient and draw the blood anyway? In addition to the more dramatic occurrences when physicians are requested or required to test accident victims for the presence of debilitating substances in their blood, such as alcohol or cocaine, there are also less urgent programs for drug testing. In these programs the entire work force of a company might be subjected to testing due to a mandate issued by an employer; employees are selected at random for testing. Should physicians take part in programs which call for random drug testing? What role should the physician play in regard to detecting people who break the law or who may endanger their own lives and the lives of others? What responsibility do physicians have to act as agents of the court?
Clearly, there are people who endanger themselves and others by operating automobiles and other machines in an impaired condition. In addition, there are people who break the law by using prohibited substances. Surveys indicate that more than half of the automobile accidents involve drivers who are under the influence of alcohol. Industrial accidents also involve a significant percentage of people who are impaired by alcohol or other psychoactive substances. Society has a right and a responsibility to protect human lives and eliminate the incidence of accidents which involve people who are debilitated due to the abuse of mind-altering substances. Physicians as responsible members of society should cooperate in an effort to preserve life and limit injuries.
In order to conduct drug testing in an ethical manner, however, and in order to protect the rights of physicians and the rights of individuals, some clear distinctions are needed. Though society has rights to protect life and promote safety, society does not have absolute rights. Citizens have rights as well. Though employers have a right to require competent and industrious employees, the rights of employers are not absolute. Employees have rights as well.
The fundamental rights of an individual, whether the individual is considered as a citizen, an employee or even a patient stems from the individual's human worth and dignity. The fundamental right to treatment as a person of worth and integrity is not bestowed by society, employers, or physicians. Rather, it springs from the person's existence as a human being. When considering how to protect life and promote safety then, the programs in question must consider the worth of the individual person. The argument is often put forward that people who do not break the law have nothing to fear from drug testing. Thus drug testing should be allowed and should be mandatory. This argumentation overlooks, however, the fact that proving one's innocence when one is not guilty of substance abuse is a demeaning experience. In the United States we have a legal principle, "A person is innocent until proven guilty." The roots of this dictum go beyond law to the very heart of human worth. Demanding that one prove innocence when there is no cause to suspect guilt devastates self-esteem, a touchstone of human worth and integrity. In sum, the individual does not surrender his or her fundamental right to be respected as a person of worth simply because one becomes a citizen of a particular society, is employed by a company or business, or becomes a patient in need of medical care.
Insofar as fostering human worth is concerned, physicians have a special responsibility. In the profession of the healing arts, there must be a relationship founded upon trust. Thus the patient must be convinced that the physician or other health care professional is interested in him or her as a person and that the fundamental and primary cause of this interest is a desire on the part of the physician to protect and heal the patient. If the patient considers the physician primarily as an agent of the court or someone interested primarily in making money, then the potential for a relationship built upon trust is weakened if not destroyed.
When acting as healers in the emergency room or any other place then, physicians must balance the rights of the patient, the rights of society, and their own rights. If a person is an accident victim and suspected of driving while intoxicated, the primary goal of the physician must be to heal the injured person. If the law officer requests some procedure be performed which would provide evidence in a trial, then the physician in question must observe the norms of informed consent. If the patient is unconscious then it seems no procedures should be performed which would incriminate the patient. If a person is unconscious, only those procedures may be performed to which the patient would consent were he or she conscious; May we presume that unconscious accident victims would want their blood drawn to be tested by a police laboratory? The point is not that an accident victim suspected of driving while intoxicated should never be tested by competent authority. Rather, the point is that such testing should not be performed by physicians unless there is informed consent or the basis for presumed consent. If some semblance of informed consent is not present when gathering evidence is proposed by an officer of the law, then the health care professionals become agents of the court, pure and simple, and weaken the acceptance of medicine as a healing profession. Gathering legal evidence does not necessarily require the cooperation of physicians. The courts have many ways of assessing the competence of a driver and of gathering evidence, even evidence requiring hemotological studies.
Insofar as other forms of testing are concerned, the physician must also be careful to respect the rights of individuals. Random drug screening is ethically acceptable only if the people being tested are responsible for the public good in a direct manner, for example, if they are responsible for the lives and safety of many people. Thus, airplane pilots and bus drivers might be groups who would be candidates for random screening, though a record of safety over a length of time might exempt people from such programs. Random screening programs which are justified only because drugs are illegal, however, do not seem to be ethically acceptable because they involve a method of enforcing the law which is personally demeaning. Physicians then should not take part in such programs lest they mitigate the meaning of their own profession.
Sometimes a person who has not been injured, but who has been involved in an industrial accident, is presented for testing accompanied by an employer or a shop steward. Such testing may be in accord with a union or employment contract. Even in these cases, informed consent should be required. Again, the rights of the employee, the union, and the employer to have the testing performed is not under question. Rather the question is, how should such testing be performed ethically by a physician?
Some of the conclusions of this essay are not in accord with accepted modified practice. But if physicians are not concerned about values evidenced in the practice of medicine, then no one else will be. Hence the above considerations foster two important values: (1) the value of the individual as a person possessing fundamental rights not granted by society, employer, or physician; and (2) the value of medicine as a healing profession based upon a relationship of trust.
Kevin O'Rourke, OP
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