Finally, the commission was highly critical of the new Directives' approach to decision-making, which they believed should be a shared responsibility. They strongly disagreed with the preamble's claim that the local bishop has ultimate authority when it comes to evaluating the morality of new scientific developments and debated questions. They did not question the importance of the bishop's role in hospital policy and practice, but rather his competence to be the sole arbiter, "the sole ultimate authority" (preamble to the 1971 Directives). The majority of bishops simply are not moral theologians and do not have expertise in the life sciences or in medical ethics. "This unqualified statement of the local bishop's competence in medical ethics," the commission stated, "has been questioned on theological grounds, on legal-medical grounds, and for reasons of common sense" (paragraph 46). Instead, the commission called for broad consultation, especially at the local level, so that "all who have a stake are permitted and encouraged" to share in the decision-making process, especially the patient.
The central moral agency of the patient must be acknowledged and his freedom should be maximized, though not to the exclusion of other considerations. The patient has the right to the fullest amount of information (medical and ethical) necessary for informed and responsible consent, and often he has the right to determine medical practice in his regard on the basis of his consent or dissent—but this latter right is not without limit (paragraph 49).
Third, and finally, the commission turned to conscience, cooperation and dissent. The fundamental issue here was patients' (Catholic and non-Catholic) and clinicians' exercise of a sincere and well-formed conscience which the commission believed they have the right to do, within limits, on the basis of the right to religious liberty and the nature of conscience. The challenge for the Catholic hospital was whether it would allow patients, or patients and their physicians, to follow a course of action dictated by conscience, but contrary to some portion of the Directives. The commission proposed that these types of situations should be addressed using the principles of a theology of cooperation (paragraph 54). They went on to explain:
Today a theology of cooperation must be formulated and interpreted in light of the Church's affirmation of the right of religious liberty, its acceptance of pluralism in principle, and its teaching of ethical norms with varying degrees of affirmation according to a scale of moral values. … Norms, no matter how detailed, cannot supply the answers. To arrive at decisions concerning cooperation requires a good ethical sense, consultation with those directly involved, and a knowledge of the local situation (paragraph 55).
It was the position of the commission that, given church teaching on conscience and the right of legitimate dissent, in some cases and for moral reasons, moral decision-makers might licitly deviate from concrete, non-infallible Directives, provided certain conditions are fulfilled.11
In conclusion, the commission urged a prompt and thorough revision of the 1971 Directives with input from a wide range of individuals with appropriate competencies. In addition, they made a number of other recommendations, among them less attention to sex and reproduction, and addressing a number of other issues like service to the poor and underserved; end-of-life issues; the necessity of informed consent; transplantation; human experimentation; and genetic counseling.
A REVISED CODE OF ETHICS — 1995
While it took 24 years, the 1971 Directives were revised. Published in 1995 after broad consultation over a six-year period and 11 major drafts, the revised Ethical and Religious Directives for Catholic Health Care Services, was dramatically different from the previous version. Many of the critiques levelled against the 1971 code were taken seriously by the drafters and their consultants. As we know, that 1995 edition was more theological/
scriptural and less legalistic; provided theological/philosophical rationales for conclusions; began by focusing on core values of Catholic health care and key characteristics of Catholic health care organizations; incorporated social justice considerations; employed human dignity as a central and unifying theme; focused more on the patient as decision-maker; dealt with a broader number of clinical issues; and included a section on partnerships, to name just a few improvements.
LOOKING TO THE FUTURE
It has now been 24 years since such a thorough-going revision. As previously noted, in the intervening years, there have been many significant developments on many fronts relevant to Catholic health care. Given this, perhaps it is time for an update of the current edition, one that is not as drastic as the 1995 revision, but one that better reflects and addresses what has transpired over 24 years. As someone who has lectured and written extensively on the ERDs over 17 years and participated in three revisions, I offer a few topics that might be considered in the next revision, recognizing that the ERDs cannot address every relevant topic and issue.
First, Catholic identity has been and continues to be a major concern for Catholic health care. It cannot be reduced to observance of the ERDs nor to refusing to provide a handful of procedures judged to be immoral, though these are certainly a part of Catholic identity. Rather, a robust description of what constitutes Catholic identity, even though not a comprehensive and definitive description, would be most helpful to the ministry as would a somewhat more detailed explanation of what it means to be a "ministry" and a "ministry of the Church." As Catholic health care transitions to increasing lay leadership, these are fundamentally important concepts that need to be grasped and lived out if Catholic health care is going to survive and flourish.
Second, the Catholic Theological Society of America report called for greater attention to conscience. This did not really get developed in the 1995 edition. There are only a couple of passing references to conscience. Yet conscience is a central reality in Catholic moral theology and in the teachings of Vatican II.12 And each and every day, there are hundreds if not thousands of conscience decisions made in Catholic health care facilities by administrators, clinicians, patients and their families, and many others. Ironically, the 1949 and 1955 editions explicitly address the exercise of conscience in two types of situations: in matters that are legitimately debated by theologians and in cases of doubt when the code does not speak to an issue or where its application is unclear. In these situations, the physician is supported in following his or her conscience and doing what is in conformity with sound medical practice.13 Perhaps we have something to learn from our neighbors to the north about addressing the role of conscience in moral codes for Catholic health care. The 1970 edition of the Canadian Catholic Medico-Moral Guide (the Canadian equivalent of the U.S. Ethical and Religious Directives) states that the application of the guidelines "to a particular situation will usually entail a great deal of prudence and wisdom. … The Guidelines should serve to enlighten the judgment of conscience. They cannot replace it."14 The current edition of the Canadian Health Ethics Guide contains an appendix devoted to "Making Moral Judgments" with two pages devoted to conscience.15 An update of the current edition of the ERDs would be providing an important service to all involved in Catholic health care by affirming the role of conscience, what is involved in forming conscience, and the necessary conditions for occasionally departing from a particular directive in the most difficult of cases, while not giving the impression that following conscience means doing what one wants.
Third, the world of health care involves more than providing medical treatments and procedures. There is an institutional side as well, and this institutional side has as much to do with Catholic identity as does the clinical, if not more. It would be worth considering adding a seventh section or part to the Directives to address some of the more important issues of an organizational nature, for example, the role of ministerial juridic persons and boards in fostering Catholic identity and the mission and values of the organization, formation, hiring for mission fit, executive compensation in a faith-based nonprofit health system, just wages for employees, respecting all forms of diversity, eliminating or reorganizing staff positions, giving employees a voice, conscientious objection, subsidiarity and budgeting as a moral exercise. Such an addition would provide another opportunity for bringing the Catholic social tradition to bear on health care and would help ensure that Catholic identity permeates the organization.
Fourth, several parts of the current edition could be updated. For example, Part One, "The Social Responsibility of Catholic Health Care Services," would be enhanced by one or more directives relating to care of the environment. It is well-known that health care is one of the worst contributors to environmental degradation. Environmentally responsible health care should be a distinguishing mark of every Catholic health care organization. It is the right thing to do. Also to be included in this section would be directives having to do with preventive health care, addressing the social determinants of health, working in and with communities to address health needs, collaborating with community partners to improve health, and addressing health disparities. These are all important dimensions of the current health care environment. In Part Five, "Issues in Care of the Seriously Ill and Dying," one of the most important additions would be an affirmation of palliative care and hospice care, both of which have been supported by our three most recent pontiffs. Guidance on palliative sedation also would be helpful, as well as POLST, or Physician Orders for Life-Sustaining Treatment (medical orders that travel with a patient that can be helpful in end-of-life care). Finally, Part Three, "Issues in Care for the Beginning of Life," also could use an update. There have been developments in genetics, the use of stem cells, uterine ablation, uterine ablation with salpingectomy (the surgical removal of one or both fallopian tubes), salpingectomy for cancer risk reduction. There perhaps also needs to be more clarity about early induction, miscarriage and premature rupture of membranes.
Fifth, and finally, one of the most difficult issues for Catholic health care is the church's prohibition of tubal ligations for serious medical reasons. Such sterilizations are judged to be direct sterilizations and, hence, morally forbidden. This prohibition flies in the face of medical standards of care and common sense. There are several issues here that can only be named, but not discussed. There is a question whether in light of the Vatican's 2018 "Response to a Question on the Liceity of a Hysterectomy in Certain Cases," such tubal ligations might be considered to be indirect sterilizations and, therefore, morally permissible.16 Others argue "that our rich, moral tradition possesses the pastoral wisdom to enable patients and physicians to remain true to the church's teaching while at the same time making complex medical decisions," decisions that take account of the complexity of some obstetrical cases, circumstances (access to care, availability of specialized obstetric services, newborn intensive care, geographic location, insurance coverage, physician-patient relationship, etc.) and the primary intention, which is to avoid potentially very serious harm to the life or health of the mother and fetus.17 Also at issue, in addition to the conscientious decision of the patient, is the conscience of the physician and the physician's professional obligation to do no harm and to adhere to standards of care. The reality is there are very difficult cases in which alternatives are not feasible or non-existent. There must be a pastoral approach to these situations. In any case, what is needed is a thorough dialogue at the highest levels that brings together those with the needed competencies for an honest, informed, comprehensive examination.
Throughout its 100-year history, Hospital/Health Progress has been true to its original mission of being a vehicle for communicating some of the best thought and practice to the ministry. This is certainly true in the areas of theology and ethics. The journal's contribution to the development of the 1995 revision of the Ethical and Religious Directives is but one example, though a most important one. Going forward, it is critical that Health Progress continue to be a place where theologians and ethicists can exchange and probe ideas, challenge what needs to be challenged and propose new approaches. In doing so, it can influence practices in our ministries that strengthen Catholic identity, better serve our patients and communities and, quite possibly, help shape future editions of the Ethical and Religious Directives, a role it has successfully played in the past.
RON HAMEL is the former senior ethicist at the Catholic Health Association. Currently retired, he serves on SSM Health Ministries and the SSM Health Board of Directors based in St. Louis and the Irving, Texas-based CHRISTUS Health mission integration and human resources committee of the board.
- Rev. Lawrence E. Skelly, "Code of Ethics for Catholic Hospitals," Hospital Progress 28, no. 1 (January 1947): 17.
- The Catholic Hospital Association and Hospital Progress played a central role in the development of the 1949 and 1956 editions of the Directives. Rev. Gerald Kelly CHA's consulting ethicist, was the main author of both. In addition, for 10 years beginning in 1947, Kelly published, in virtually every issue of Hospital Progress, a column ("Medico-Moral Problems") on some topic related to the Directives. These were eventually collected under one cover and published by CHA as Medico-Moral Problems in 1957.
- Rev. Thomas J. O'Donnell, "The Directives: A Crisis of Faith," Hospital Progress 53, no. 8 (August 1972): 34.
- Commission on Ethical and Religious Directives for Catholic Hospitals, "Catholic Hospital Ethics," Hospital Progress 54, no. 2 (February 1973): 44-56.
- In addition to the articles listed below that were critical of the 1971 Directives, there were several published in Hospital Progress that either took a different point of view than the critics or supportive of the code. Besides the one by O'Donnell cited above, Rev. Donald J. Keefe, offered a scathing rebuttal of the Catholic Theological Society of America report (Donald J. Keefe, "A Review and Critique of the CTSA Report," Hospital Progress 54, no. 2, February 1973: 57-69) and two clergy from Minnesota offered a pro and con dialogue on the Directives.(Rev. Mark Dosh and Rev. William Hunt, "Dialogue on the Directives," Hospital Progress 54, no. 3 (March 1973): 46-52.)
- Rev. Kevin O'Rourke, Rev. Thomas Kopfensteiner, and Ron Hamel, "A Brief History: A Summary of the Development of the Ethical and Religious Directives for Catholic Health Care Services," Health Progress 82, no. 6 (November-December 2001), 19.
- Rev. Richard A. McCormick, "Not What Catholic Hospitals Ordered," The Linacre Quarterly 39, no. 1 (February 1972): 16-20; Warren T. Reich, "Policy vs. Ethics," The Linacre Quarterly 39, no. 1 (February 1972): 21-29.
- Eugene Diamond, "A Physician Views the Directives," Hospital Progress 53 (November 1972): 57-59; Warren T. Reich and Richard A. McCormick, "Theologians View the Directives," Hospital Progress 53 (December 1972), 50-54, 68.
- Diamond, "A Physician Views the Directives," 70-72; Warren T. Reich and Richard A. McCormick, "Theologians View the Directives," Hospital Progress 54 (February 1973), 73, 74, 76.
- CTSA Commission on Ethical and Religious Directives for Catholic Hospitals, "Catholic Hospital Ethics," The Linacre Quarterly 39, no. 4 (November 1972), 246-67. It should be noted that the themes in the CTSA Report, as well as in McCormick's and Reich's critiques, were concerns and perspectives that were very much "in the air" at that time in the field of moral theology/ethics.
- See paragraph 63 for a listing of these conditions.
- See Vatican II, The Declaration on Religious Freedom, par. 3; Constitution on the Church in the Modern World, par. 16.
- National Conference of Catholic Bishops, "Ethical and Religious Directives for Catholic Hospitals, Introduction," Hospital Progress 30, no. 3 (March 1949): 67.
- The Catholic Hospital Association of Canada, Medico-Moral Guide (Ottawa: The Catholic Hospital Association of Canada, 1970).
- Catholic Health Alliance of Canada, Health Ethics Guide (Ottawa: Catholic Health Alliance of Canada, 2012), 113-14.
- See Peter Cataldo, "The CDF's Response to a Question on the Liceity of a Hysterectomy in Certain Cases: A Fundamental Turn," Health Care Ethics USA 27 (Spring 2019), 1-7.
- See Amy Warner and Sr. Patricia Talone,"Ethics and Medical Standards of Care: Hysterectomy, Tubal Ligation, or Salpingectomy?" Health Care Ethics USA 27 (Winter 2019): 21-27. See also Rev. Francis G. Morrisey, "Restructuring Systems: A Call for Dialogue," Health Progress 94, no. 1 (January-February 2013): 66-67. In this article, Morrisey calls for dialogue within the Catholic community regarding the need for a new approach to the matter of tubal ligations.
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