questions answered

by wm. b. smith

Cooperation in Health Care

Answer: My short answer is "no"; but the reasons for saying no are not short.

The Principles of Cooperation are admittedly a subtle and very nuanced part of moral theology. Nonetheless, what we once called "approved authors" [Aertnys-Damen-Visser (1967); Noldin-Schmitt-Heinzel (1961); Zalba (1958); Davis (1949); even Vermeersch (1928)] all published explanations and applications of the "principles of cooperation" with ecclesiastical approbation. To complicate things further, while all these "approved authors" agree in concept, their chosen terminology is not always in agreement.

In short, moral cooperation means participation (assistance; help; contribute; aid-and-abet; the civil law notion of "complicity"). Cooperation in good is no problem; it is always welcome. Cooperation in moral evil raises all sorts of problems-problems of kind and problems of degree.

Traditionally, "cooperation" is of two kinds: formal cooperation and material cooperation. Formal cooperation means that the cooperator agrees (approves; concurs) with and participates in some evil. All Catholic authors agree that formal cooperation is wrong; e.g., Evangelium Vitae (3/25/95) condemns it absolutely: "it is never licit to cooperate formally in evil" (EV, n. 75).

Material cooperation means that the cooperator does not agree (not approve, nor concur) in the order of intention, but the pivotal question here is one of causality: what kind of cooperation or participation is involved; how proximate or remote is this material cooperation? Is it free or necessary cooperation?

It is here that all authors speak to the same concept, but not always in the same terms. For clarity, I find it easier to ask the intentionality question first: Does one agree with what (evil) is going on (formal)? Or, does not one agree with what is going on (material)?

Since the first, "formal cooperation," is never permissible, one must then ask about the second: what kind of cooperation (participation) are you placing? Is it such immediate material cooperation (i.e., without your assistance the wrong can not be done, cf. canon 1329, #2), or, such mediate material cooperation (accessory) that your participation is helpful but not crucial?

Again, I believe, all Catholic authors consider immediate material cooperation as impermissible, i.e., illicit cooperation-except for some cases involving the 7th commandment. Take the example of the manager of the 7-11 who is the only employee present who knows the combination to the safe. The thief says, quite seriously, "open the safe or I'll blow your brains out." Given an ordered hierarchy of virtues, the true nature of life and property, and that morally "stealing" is a taking against the reasonable will of the owner, I must reasonably presume the owner of the store prefers the life of the manager to the contents of the safe. This immediate cooperation is not impermissible in se, but I would not label that simply as "duress" without qualification (more below).

It is certainly worth nothing that the "approved authors"-mentioned above-all speak to the cooperation of individuals, NOT the cooperation of institutions (A-D-V, I, n. 356; N-S-H, II, n. 119, #4; Z, II, n. 253, #1; D, I, p. 342).

Quite recently, the NCCB revised (1994) the "Ethical and Religious Directives for Catholic Health Care Services" (hereafter ERDs). This 1994 revision included and inserted a new Part 6, "Forming New Partnerships with Health Care Organizations and Providers," with its own Introduction, Directives (##67-70) and a final Appendix on "The Principles Governing Cooperation" (p. 29).

I'm not sure how to say this politely or correctly, but this clarifying Appendix on moral cooperation is not the clearest explanation of Catholic moral teaching I have read. In ways, it can confuse as much as it clarifies.

Some commentators see easy and automatic transfer of the principles of cooperation from individuals to institutions (e.g., Kaveny-Keenan in Theological Studies 56 (1995) pp. 145-6, who equate and then collapse cooperation in evil into the toleration of evil).

Other commentators, notably Russell Smith [cf. chpt. 15 in The Splendor of Truth and Health Care (1995) 217-231] makes more nuanced distinctions, outlines the basic principles and applies them to various joint ventures in health care, much of which I could agree with.

Recently, G. Grisez proposed and responded to a difficult moral question: "How Far May Catholic Hospitals Cooperate with Non-Catholic Providers?" [cf. Linacre Quarterly 62:4 (November 1995) 67-72]. Like Smith (above) Grisez considers: simple contractual arrangements; integrated networks; co-sponsored HMOs; purchased practices of groups of physicians (or providers) who remain free to provide services to some which a Catholic organization can't provide without violating the ERDs.

In Grisez's analysis, "formal cooperation" is likely to occur not only in carrying out a cooperative agreement "but also, and even especially, in setting it up." Material cooperation can also be wrong and a Catholic hospital's material cooperation with the provision of morally unacceptable services (called "proscribed services") is likely to be wrong (LQ, pp. 68-69).

I think Grisez is closer to the truth although the consequences are sobering. I cannot overemphasize the radical difference between cases of cooperation involving individuals and those involving institutions. Conventional teaching and teachers consider the individual doctor, or nurse, or social worker whose good or neutral work (service) is somehow connected with some evil practice or procedure there. When those individuals do not agree or approve, they are not formal cooperators. And depending how immediate or mediate, how proximate or remote, their material cooperation will be permissible or not depending on the presence or absence of these actual factors in a given case.

Clearly, in this conventional understanding of cooperation, the individual employee does not set the policy for the institution. However, in a joint institutional venture, a full merger, a limited cosponsor, co-owner or limited partner, from the viewpoint of corporate governance, the Religious Order or Catholic group that formally and freely establishes such a joint venture cannot pretend they do not set policy. They do; that's what governance is. Unlike the employee who does not set policy, surely the employer (owner, sponsor, partner) does set policy. Thus, Grisez's telling point: "but also, and even especially, in setting it up."

As above, all the "approved authors" speak to individuals, not institutions! The explanation in the ERDs (1994) is not well stated but even it gives examples only of individual cooperation (p. 29). Unfortunately, the "Introduction" to Part 6 of the ERDs, 3 pages prior (p. 26), directs that the Appendix that follows (p. 29) will help solve concrete situations.

It is here that some invoke the notion of "duress" to justify such close association (shared governance; co-sponsorship) on the basis that single-standing hospitals will not survive and joint sponsored facilities might survive, if the right distinctions are made.

"Duress" here is all too real, i.e., a highly competitive financial environment (threatening viability), and a hostile social environment, what the Pope calls the "Culture of Death" (threatening Catholic identity). But, this real "duress" calculates radically different things: often financial and social versus the moral. This "duress" compares a loss of Catholic services to some either poorly served or underserved, and the gain of viability, simply staying open to provide health services-no doubt a contribution to the "Culture of Life."

It seems to me we end up comparing moral apples with financial oranges. Indeed, the oft cited "duress" sounds the same as the proportionate reason so central to the "proportionalism" so thoroughly repudiated by Veritatis Splendor (8/6/93) nn. 71-83.

Obviously there are great challenges to our institutions both to their Catholic viability and Catholic identity. The problem of theological scandal also pervades the whole question of permissible and impermissible moral cooperation. It is more than just good public relations to answer the question: how can a Catholic Sponsor sponsor what the Catholic Church forbids?

If through smart, even exquisite, constructions of legal governance some Catholic hospitals become indistinguishable in services offered, provided and sponsored, then in time both viability and identity will be gone.

Grisez notes (p. 72) that large hospitals of 200, 400 or 600 beds are not the only way to live and witness the Catholic mission in health care. With beds reduced, with continued reductions in all institutions, with a greatly lessened presence of dedicated religious, perhaps the time has come not to play a subordinate role in a secularized system but seek more limited but real services to those in need now and surely in the future: the unborn; pregnancy care; those whose quality-of-life won't rate in reimbursement schemes (for-profit or governmental); and those disorganized folks "freed" from institutions but wandering the streets in a daze.

No one can underrate the difficulties, economic and social, that presently are squeezing Catholic institutions-both their viability and identity. All the more reason for Catholic institutions to network together. However, a misstatement or misapplication of the principles of cooperation for joint ventures with other institutions with different missions and different values will only delay the time-line. Catholic identity will be compromised first, with viability sure to follow. A Catholic institution cannot sponsor or co-sponsor what it says it is conscientiously opposed to. A formal agreement to do so is an impermissible form of cooperation.

Please address questions to Msgr. Wm. B. Smith, St. Joseph's Seminary, Dunwoodie, Yonkers, N.Y. 10704. n