By | October 20, 2019

BY KATHLEEN GILBERD

Counselors and attorneys hear many accounts about denial of military medical care and inadequate care—soldiers whose serious health problems are never evaluated, incorrectly diagnosed, or mistreated. Servicemembers generally feel they have little recourse when denied care or given inadequate care. But Department of Defense policies provide some protection of patients’ rights which can be valuable in challenging denial of access to medical care or quality of care.

Unfortunately, these policies are largely unknown to servicemembers and their commands, and often to military medical personnel as well.

One of the central pieces of the policies is DoD Instruction 6000.14, “DoD Patient Bill of Rights and Responsibilities in the Military Health Care System (MHS),” promulgated on September 26, 2011, and incorporating Change 1 of October 3, 2013. It cancels a former version of the reg, and is designed to implement the civilian “Consumer Bill of Rights and Responsibilities” issued by the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry in November of 1997. 

In its policy summary, the Instruction states that:

 “MHS patients have explicit rights about information disclosure; choice of providers; health plans; access to emergency services; participation in treatment decisions; respect and nondiscrimination; privacy and security of personally identifiable information (PII), complaints, and appeals; as well as specific responsibilities to participate in their own health decisions.” (DoD 6000.14, para. 4.a)

To this writer’s knowledge, the individual services do not have parallel regulations, though some rights are covered in service regulations on medical care and the disability evaluation system or, in some services, discharge regulations. Some bases and medical facilities have created their own bill of rights documents, sometimes incorporating parts of the DoD Instruction and occasionally expanding on it. For example, some Army base policies require that commands follow the recommendations of medical profiles for duty limitations, which are otherwise not binding.

Among the most significant rights in the DoD Instruction are:

1. ACCESS TO MEDICAL CARE AND EXPLANATIONS OF CARE

Enclosure 2 to the Instruction states, at part 1.a, that patients have the right to quality care and treatment, including access to specialty care. This right is apparently limited to care “that is consistent with available resources and generally accepted standards.” As readers probably know, GI’s are often denied access to care by their commands (commonly by senior enlisted personnel) or by medics/corpsmen. Citing to the Instruction’s summary and this subsection may be helpful in cutting through such denials.

Enclosure 3, part b, requires that each MTF/DTF (medical treatment facility/dental treatment facility) “provide beneficiaries with the right to a choice of healthcare providers that is sufficient to ensure access to appropriate, high-quality healthcare.” That section also says that beneficiaries will “be assigned or allowed to select” a primary care manager, suggesting that there is no guarantee a requested doctor will be assigned.

While military health care personnel are usually willing to discuss diagnoses, etc., their willingness to ensure patients can understand their terminology is sometimes limited. Part 1.c of Enclosure 2 states that patients are entitled to an explanation of their diagnosis, treatment, procedures and prognosis in “easily understandable terms.” For vulnerable patients, whose capacity for decision-making may be affected by their medical condition, the information should be given to a designated representative. 

2. PRIVACY AND SECURITY OF HEALTH INFORMATION

Military medical facilities are required to “provide MHS beneficiaries with the right to communicate with healthcare providers in confidence, to have the privacy and security of their protected health information maintained to review and copy their own medical records, and to request amendments to their records.” (Enclosure 3, part 2.f) These important rights are subject to exceptions covered in DoD 605.18-R, DoD 8500.2, and the DoD “Medical Management Guide,” and will be discussed in detail in the next issue of On Watch. It is worth noting that medical personnel and commands frequently ignore these rights.

3. DISCRIMINATION

The Instruction requires that all care be respectful, considerate, and free from discrimination, stating that the military health system “does not discriminate in the delivery of healthcare services or in information and enrollment practices based on race, ethnicity, national origin, religion, sex, age, mental or physical disability, genetic information, sexual orientation, or source of payment.” Enclosure 3, part 2.e. Presumably the internal and external complaint procedures discussed below could be used for discrimination complaints.

4. SECOND OPINIONS

The right to a second opinion is not discussed specifically in the Instruction, though it is arguably implicit, and most medical treatment facilities accept it as a right. The difficulty here is that a second military evaluator is often swayed by the opinion of the first, so that obtaining a second military opinion may simply reinforce the original diagnosis or proposal for treatment. Some counselors and attorneys recommend an independent civilian evaluation (as through the Civilian Medical Resources Network, or CMRN) either before or instead of a second military opinion. While this has little official weight with the military, a well-thought-out civilian evaluation may affect the opinion of the second military evaluator or, in some cases, that of the first.

5. INFORMED CONSENT AND REFUSAL OF TREATMENT

At part 1.c of Enclosure 2, the Instruction sets out patients’ right to “any and all necessary information in non-clinical terms to make knowledgeable decisions on consent or refusal of treatment….” Enclosure 3, part 2.d, requires that medical treatment facilities ensure patients “have the right and opportunity to participate fully in all decisions related to their healthcare, subject to readiness requirements for active duty Service members.” Here, too, facilities are required to provide information in easily understood terms. Enclosure 3, part 2.d.(1).(a) requires that healthcare providers discuss all treatment options with patients, “including the option of no treatment at all….” And part 2.d.(1).(g) states specifically that mentally competent patients must be given the opportunity to refuse treatment. However, part 2.d concludes with a warning that active-duty members’ rights under this part are “subject to responsibilities of the member to comply with Service requirements for military readiness and [the UCMJ].” While there is no discussion of such readiness requirements, military courts have held that they include vaccinations.

Military physicians tend to know that patients may refuse courses of treatment, but they do not always convey this information to patients, and sometimes press for their preferred treatment as the only, or only safe, course. Where patients refuse treatment, they run the risk that it will affect their doctors’ assessment of their cases or inclination to refer cases to medical evaluation boards. Commands may not be knowledgeable about the right to refuse treatment, so that GI’s are occasionally ordered to undergo a particular course of treatment. Some practitioners encourage clients to set out in writing the reasons for their objections to particular treatments, and to make these writings a part of their medical records.

The section of the Instruction covering the “responsibilities” of patients requires them, among other things, to cooperate with treatment plans. However, this section also states that failure to follow patient responsibilities does not warrant withholding of medical treatment. 

It’s worth noting that the right to refuse treatment may nonetheless have administrative or even disciplinary effects. The Navy’s Manual of the Medical Department, which covers treatment of both sailors and Marines, states at article 18-22 that medical treatment will not be performed on a mentally competent member who does not consent to a recommended procedure. In these cases, a medical board must be convened and its results forwarded to a Physical Evaluation Board to determine if the refusal was reasonable. The Manual notes that an unreasonable refusal could result in denial of VA and Social Security Administration treatment for the condition involved. 

The Marine Corps allows for administrative discharge where the refusal of treatment interferes with Marines’ duty. Convenience of the government discharge is permitted for reasonable treatment refusals, at commanders’ discretion, under Marine Corps Separation and Retirement Manual para. 6203.7. Discharge here would most likely fall under the category of physical condition not a disability. If a physical evaluation board review determines that refusals are unreasonable or involve intentional misconduct or willful neglect, Marines may face separation for unsatisfactory performance under para. 6206 or for misconduct under para. 6210. Administrative reduction in rank is also permitted for unreasonable refusal.

Army commanders are provided guidance for treatment refusals in AR 600-20, section 5-4. This lists a number of situations in which treatment may not be refused, ranging from vaccinations to emergency medical care required to save the member’s life, health or fitness for duty. Where members refuse treatment not covered in section 5-4, medical boards must be conducted to determine the need and risks of the proposed treatment, whether the treatment will enable the member to return to duty, and whether the refusal is reasonable or unreasonable. If the medical boards find the treatment appropriate, and the members still refuse, cases are referred to the Army Surgeon General for approval or disapproval. If the Surgeon General approves the board’s findings, and the members continue to refuse, their cases will be referred to their special court-martial convening authorities, who will formally order the members to submit to the treatment. If the members continue to refuse at this point, commands may take disciplinary action or process the members for administrative separation. (Special consideration is given to members who refuse treatment for religious reasons.)

6. GRIEVANCES

Few servicemembers know that they can file grievances about refusal of access to military medical care or the course of that care. Some know that larger medical facilities have ombudsmen, and that some of them will advocate aggressively for patients, but rights beyond that are largely unknown. DoD 6000.14, however, sets the right to file grievances out clearly at Enclosure 2, part 1.g:

“Patients have the right to make recommendations, ask questions, or file complaints to the MTF/DTF Patient Relations Representative or to the Patient Relations Office. If concerns are not adequately resolved, patients have the right to contact The Joint Commission at 1-800-994-6610.”

Enclosure 3, part 2.g, covers the medical system’s responsibilities for patient complaints and appeals. Facilities are required to maintain a “rigorous” system of internal review and an independent system of external review, though these are not discussed in any detail in the Instruction except for denial of services.

COMPLAINTS OUTSIDE THE BOX

While the DoD Instruction mentions internal and external grievance procedures, these are by no means the only methods available to aggrieved patients. In some cases, military physicians may be asked to intervene when problems arise with other physicians involved in a case. While military medical professionals are not known for strong advocacy for patients, the DoD Instruction does state that the medical health system “shall not penalize or seek retribution against” health care workers who advocate for their patients. Encl. 3. part 2.d.(3).

In some cases, inquiries to health care providers or the commanders of medical treatment facilities by counselors or attorneys may be useful. Warnings about the possibility of formal complaints may sometimes be as useful as the complaints would be.

Complaints under Article 138 of the UCMJ cannot be used for grievances against personnel outside a member’s chain of command, and so do not normally apply to health care personnel. The Navy, however, allows for an exception to this under Navy Regulation 1150. This reg utilizes procedures quite similar to Article 138’s, covered in chapter 3 of the Manual of the Judge Advocate General (JAGMAN).

Although servicemembers should not ‘jump the chain of command’ with complaints made directly to the service’s Surgeon General, nothing prevents an attorney, counselor or family member from bringing inadequate treatment to a Surgeon General’s attention. Congressional inquiries, if framed so that the Member of Congress is asked to raise specific questions or requests, can also be helpful. 

CONCLUSION

DoD policies provide some protections of patients’ rights and attorneys and counselors should be aware of these policies.  As always in the military, the policies are only as good as those who are supposed to carry them out.  Assertiveness when receiving medical care is important and the ability to cite the military’s own policies is a key part of that advocacy.  Grievances and other complaints are available and servicemembers need to be aware of these.  

The next issue of On Watch will address the important issues concerning privacy and security of health information in the military.

Kathleen Gilberd is a legal worker in San Diego, focusing on administrative discharges and discharge review, and is the executive director of the MLTF.