May 042009

Professor Carl Coleman of Seton Hall Law School has written an interesting paper entitled, “Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic”.

I haven’t read the whole thing yet, but I’m in substantial agreement with the abstract:

In anticipation of pandemics and other mass disasters, several states have enacted little-known laws that authorize government officials to order health care professionals to work during declared public health emergencies, even when doing so would pose life-threatening risks. Health care professionals who violate these orders could face substantial penalties, ranging from license revocations to fines and imprisonment. The penalties would apply even to individuals whose jobs do not normally involve clinical responsibilities, as well as to health care professionals who are retired or taking time off from work to care for their families. This Article argues that these laws impose burdens that exceed the ethical commitments individuals make when they accept a professional license. In so doing, they compel health care professionals to engage in what is normally considered supererogatory behavior — i.e., acts that are commendable if done voluntarily, but that go beyond what is expected.

In making this argument, the Article rejects commonly-made assertions about health care professionals’ ethical obligations, including the claim that health care professionals assumed the risk of infection; that a social contract requires health care professionals to work despite potential health risks; and that individuals who have urgently-needed skills have an obligation to use them. It concludes that, while health care professionals can legitimately be sanctioned for violating voluntarily-assumed employment or contractual agreements, they should not be compelled to assume life-threatening risks based solely on their status as licensed professionals. In place of singling out health care professionals for punitive measures, the Article argues that policy-makers should institute mechanisms to promote volunteerism.

(The full paper can be downloaded here.)

A few comments:

1) I’m encouraged that there’s a recognition that there is no such thing as a duty to engage in suicidal self-sacrifice.

2) This shows what happens when the government is granted the power to license practitioners in any field, whether it be medicine, nursing, cosmetology, etc. The government can then claim, “We’ve granted you this privilege, now you have to pay for it by performing additional duty on our terms rather than your own”.

3) This is yet another reason to oppose government-mandated medical licensing, in addition to the arguments made by Alex Epstein (“End Government Licensing“) and Shirley Svorny (“Medical Licensing: An Obstacle to Affordable, Quality Care“).

(Via Marginal Revolution.)

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