Do No Harm: Can doctors refuse to see unvaccinated patients?

As the anti-vaccination movement gains momentum in the United States, doctors are weighing the pros and cons of continuing to see unvaccinated patients.

Photo by Apotek Hjartat, Flickr

Few topics generate as much discussion on the internet as the vaccination debate.  Pro-vaccination advocates emphasize the importance of vaccines in preventing the spread of diseases such as polio, measles, mumps, rubella, diphtheria, and pertussis.  Those in the anti-vaccine camp are concerned about the ingredients in such vaccines and the possible negative side effects associated with them.

While the overall vaccination rate remains high in the United States, the anti-vaccination movement is gaining ground.  A review of data on vaccinated children collected from 2006-2011 by the Centers for Disease Control and Prevention (CDC) showed that only two states (Massachusetts and Wisconsin) had met acceptable vaccination coverage rates for pertussis and diphtheria, and almost half of all states had failed to meet the acceptable measles rate.  The numbers are even lower for adults: in 2010, only eight percent of Americans above age nineteen had received a pertussis vaccine in the last five years, though the CDC recommends that adults get a Tdap shot at least every ten years to protect against the disease.

As a result of decreased vaccination rates in the United States, outbreaks of previously controlled diseases have sprung up across the country, including a 2010 pertussis outbreak in California, which infected 9,120 people and an ongoing a mumps outbreak in Ohio, which has affected almost 200 people.  After a measles outbreak in New York City in February and March of 2014, Yale University School of Medicine professor and pediatrician Sydney Spiesel penned a controversial piece for Slate in which he defended the actions of doctors, including himself, who refuse to see unvaccinated patients.  He wrote that “It just seems unfair that one parent’s well-intended but perhaps not well-thought-out decision for her own child should add risk for the lives of other children I take care of.”

There are several ways to get around vaccination requirements.

Every state in the United States requires vaccines for schoolchildren.  For example, children enrolled in public or private daycares or schools in North Carolina must provide a certificate of immunization within thirty calendar days of their first day of attendance.  Homeschooled children, however, do not have to be vaccinated, making homeschooling a popular choice with anti-vaccine parents.  For families who are unwilling or unable to homeschool, several ways exist to avoid the vaccination requirements.

The religious exemption is a common method of avoiding vaccines and is allowed in all states, except Mississippi and West Virginia.  Most state statutes providing for religious exemptions are very broad, requiring no proof of membership in a religious organization.  In North Carolina, parents must only demonstrate that their “bona fide religious beliefs […] are contrary to the immunization requirements” contained in the statute.  Nineteen states allow for an even broader philosophical exemption from vaccination requirements, such as Louisiana, which requires only a “written dissent” from the parent or student for an exemption.

Medical exemptions are available in all fifty states, but the medical need required in order to qualify for the exemption varies by state.  In North Carolina, the reasons permitting a medical exemption are limited to those outlined in Department of Health and Human Services Form 3987.  In neighboring Virginia, doctors are free to provide their own reasons for why a vaccine should not be administered.

Except in the case of emergency room care providers, a doctor is not legally required to provide treatment, even to someone in a life-threatening situation.

A doctor can be held liable for failure to treat a patient (called “abandonment”) only when a doctor-patient relationship has been established.  Such a relationship is formed 1 when the doctor and patient enter into a contractual agreement for treatment or when the doctor undertakes the treatment of the patient, such as in a situation where the patient is unable to contract for treatment.  Except in the case of emergency room care providers, a doctor is not legally required to provide treatment, even to someone in a life-threatening situation.

Under the law, therefore, a general practitioner like Spiesel is not required to take on every potential patient who walks into his office.  Spiesel cited concern for his other patients and his desire to emphasize the importance of vaccines as his reasons for barring unvaccinated patients from his office.  Doctors also can refuse to see patients because they are unable to agree with the patient on a course of treatment or simply because their personalities clash.

A doctor’s ability to refuse patients, however, is not unlimited.  The majority of states have “conscientious objection” laws, which allow doctors to refuse to perform certain procedures, particularly abortions, because of religious objections.  Doctors’ attempts to refuse treatment to particular patients because of religious objections have been less successful.  In 2008, for example, the California Supreme Court ruled that the First Amendment did not permit doctors to use their Christian beliefs to deny care to an unmarried lesbian woman seeking fertility treatment.  Applying strict scrutiny, the Court found that the “state’s compelling interest in ensuring full and equal access to medical treatment” outweighed the doctors’ rights to express their religious beliefs.

The state has a compelling interest in public health and safety, to the extent that the United States Supreme Court has supported mandatory vaccinations in certain situations.

The issue becomes more complicated when a doctor refuses to treat a patient who has foregone vaccines due to religious objections to the procedure.  Title II of the Civil Rights Act of 1964 prohibits discrimination based on religion in places of “public accommodation.”  A doctor’s office is not a place of public accommodation under the Act; therefore, doctors in private practice can refuse to see any patient.  Doctors working in government-funded hospitals or clinics, however, cannot discriminate against a patient based on the patient’s religious beliefs.

Even under the strict scrutiny standard applied to religious discrimination, doctors at government-funded facilities have a strong argument to support their refusal to treat unvaccinated patients, even those who have refused to vaccinate for religious reasons.  The state has a compelling interest in public health and safety, to the extent that the United States Supreme Court has supported mandatory vaccinations in certain situations.  It remains to be seen whether barring unvaccinated and potentially infected patients is a sufficiently narrowly tailored solution to this problem.

Patients who have declined vaccinations due to a medical condition cannot be denied treatment if that condition rises to the level of a disability under the Americans with Disabilities Act (ADA).  A person who is disabled as defined by the ADA is “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”  Many of the qualifying conditions for a medical exemption, such as serious allergies, neurological conditions, and immunodeficiency, would also qualify as a disability under the ADA.  Doctors at government-funded facilities cannot refuse treatment to disabled individuals under Title II of the ADA, while those in private practice are prohibited from doing so under Title III.

The American Academy of Pediatrics, though strongly supporting universal vaccinations, discourages doctors from refusing to see unvaccinated patients.

Though doctors legally are able to deny services to unvaccinated patients in many situations, not all medical professionals agree that this is the best course of action.  The American Academy Pediatrics, though strongly supporting universal vaccinations, discourages doctors from refusing to see unvaccinated patients.  Turning away patients also appears to violate the Hippocratic oath, taken by the vast majority of American doctors upon their graduation from medical school, in which they promise to “apply, for the benefit of the sick, all measures which are required” and to “prevent disease whenever [they] can.”  As more people opt out of vaccinations, more doctors must be willing to find ways to treat unvaccinated patients while protecting the health and safety of the general public.

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About Katherine Doering Custis, Editor-in-Chief Emeritus (19 Articles)
Katherine Doering Custis served as the Editor-in-Chief of the Campbell Law Observer during the 2014-2015 school year. Katherine holds a Bachelor of Arts in Political Science and a Master of Public Administration from North Carolina State University. She has worked with the North Carolina National Guard, Office of the Staff Judge Advocate; North Carolina Administrative Office of the Courts, Research and Planning Division; City of Raleigh, City Attorney's Office; North Carolina General Assembly, Research Division, and Hon. James C. Hudson, Supervising Judge of Suffolk County (NY) Court. She is a native of Southold, NY and now resides in Knightdale, NC. Katherine graduated from Campbell Law School in May 2015.
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