Govind Persad, JD, PhD
Public momentum for efforts to address structural and systemic racism has led many health-care institutions to consider how they can work to bring about positive change. In this column, drawing on important recent work by Kimani Paul-Emile, JD, PhD, Professor of Law at Fordham University School of Law, and colleagues in The New England Journal of Medicine1 and Annals of Internal Medicine,2 I discuss an important issue for oncology practice: how to deal with situations in which patients make bigoted or racially insensitive comments, or refuse or request physicians, nurses, or other medical staff based on race.
While this column focuses on racial bias, many of the issues I discuss also apply to comments or refusals that implicate other identities, such as gender, sexual orientation, or religion.
Taking Action Against Racist and Insensitive Language
Health-care institutions have both legal and ethical reasons to take action when patients, family members, or others use racist language or make stereotypical or racially derogatory comments. Legally, not taking action could lead to a hostile work environment and to liability for institutions that fail to take action. Ethically, not taking action means that providers, staff, and other patients will be subject to unfair harassment and exclusion. This is especially true when the language is directed at workers who may not feel free to speak out in response.
A more complex issue arises when workers are faced with lines of discussion that may be perceived as inappropriate—such as asking staff about their nationality, religion, or political beliefs—or are asked to offer their positions or engage in debate on current political issues. These inquiries may not rise to the level of racist language, but failure to develop a policy for addressing them could lead to systemic long-term inequities, especially for medical staff who are members of marginalized groups. Dr. Paul-Emile and her coauthors propose a sample policy for medical centers, which suggests that staff who feel comfortable doing so should identify why a behavior is offensive, while those who do not should promptly report the conduct to supervisors.2
Handling Race-Based Provider Requests
Patients may request or refuse medical providers of specific races for a variety of reasons. Some, akin to racist speech, are motivated by dislike of providers. Others are motivated by discomfort or fear. For instance, a patient from a war-torn country or area may be uncomfortable with a physician associated with a group to whom the patient was opposed. Yet others are motivated by a desire for racial concordance: patients may prefer a provider from the same racial group because they believe the doctor may be better able to relate to their experience or may be less biased.
Oncology practices are never obligated to honor race-based requests and are frequently legally and ethically obligated to refuse them, for instance, when they are clearly motivated by racism. Requests motivated by concordance, especially when made by patients who are more likely to be subject to bias in health care, present more complex questions.
Dr. Paul-Emile and colleagues cite evidence that concordance can improve outcomes for minority patients. Conversely, concordance requests to be reassigned away from a provider may be difficult to disentangle from racist requests. A practice of honoring concordance requests could also have limiting consequences for minority medical trainees. Honoring concordance requests means that trainees will less often treat patients from other backgrounds than their own. This could lead to trainees’ practice opportunities being shaped and constrained by others’ perception of their racial identity. Moreover, because of the connection between systemic racism and economic inequality, complying with such requests could result in minority oncology trainees being put in a position where they more often are asked to treat uninsured patients or patients with insurance that reimburses poorly, while other physicians get to do more lucrative or high-profile work.
Racism in the Oncology Setting
Dealing with racist conduct by patients or family members may feel particularly challenging in oncology settings because patient vulnerability and the stakes of certain decisions mean that background emotions may already be running high. Dr. Paul-Emile and colleagues recommend that the clinical team ensure that the patient is stable and has decision-making capacity and then proceed to setting expectations about acceptable conduct, in some cases to be formalized in a patient care agreement.
“Health-care institutions have both legal and ethical reasons to take action when patients, family members, or others use racist language or make stereotypical or racially derogatory comments.”— Govind Persad, JD, PhD
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With regard to patients’ requests for or refusals of specific providers, the specialized nature of oncology may also mean that there are very few oncologists, especially in a rural or lower-resourced area, who are qualified to provide a specific treatment. This could lead to no providers being available in the event of a refusal, or a single provider being faced with requests to treat all of the patients who have refused other providers for reasons of race.
Outside extraordinary circumstances, such as quarantine or civil commitment, patients always have the right to refuse medical treatment from a specific provider, regardless of the reason for refusing. The common-law right against battery means that a patient cannot be forced to receive treatment from a specific provider, even if the patient’s basis for the refusal is racist. In contrast, patients have no right to receive treatment from a specific provider. If a patient makes racist comments about a provider or simply does not want to be seen by a given provider, the practice is free to let the patient go rather than allowing the patient the choice of provider, so long as appropriate rules for terminating the relationship are followed and the termination is not based on illegal grounds.
A practice considering terminating a physician-patient relationship due to racist conduct by a patient should document the conduct that prompted ending the relationship. This would help in the event of legal action (eg, if the patient claims to have been subjected to discrimination), and would also show that the practice was taking steps to avoid creating a hostile environment. Ideally, medical practices and other settings, such as hospitals, should develop comprehensive policies on patient, provider, and staff conduct, and should also develop a policy on whether and when requests for specific providers are honored, such as the sample policy Dr. Paul-Emile and colleagues suggest in their recommendations for medical centers.2
Ethically, some might complain that giving patients a choice between being seen by a provider they do not prefer or not being seen at all is coercive. This ethical analysis is mistaken. Just as patients are not coerced when they are told that they have to abide by facility policies on masking for COVID-19 and timeliness, or told they must pay to receive a treatment, they are not coerced if a request for a specific provider is denied.
More challenging ethical questions arise when patients make racist or inaccurate statements based on misconceptions—for instance, if a patient believes that only people from a specific racial group or nationality can develop a given type of cancer. As Dr. Paul-Emile and colleagues discuss, providers can productively intervene in these cases, but effective intervention is best enabled by training, rather than expecting under-pressure providers to improvise. How an oncologist or staff member approaches such a situation will depend on their level of comfort with the question and the patient.
DISCLOSURE: Dr. Persad reported no conflicts of interest.
Dr. Persad is Assistant Professor at the University of Denver Sturm College of Law and Greenwall Foundation Faculty Scholar in Bioethics.
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.