David S. Oderberg: Why We Need Protection of Conscience in Health Care

Rapid advances in medical technology mean that procedures and services have become available that would have been unthinkable, or at the best highly dangerous and experimental, only decades ago. Moreover, profound changes in ethical beliefs among many people within and without health care have, for good or ill, put on the table medical practices that used to be regarded as morally taboo, off limits – not part of what doctors are supposed to do. What does all of this mean for a health care professional who has a conscientious objection to being involved, directly or indirectly, in any of these activities?

In the UK, there is next to no legal protection for freedom of conscience in health care. Section 4 of the Abortion Act 1967 exempts practitioners from ‘participating’ in the termination of pregnancy, but the UK Supreme Court, in the infamous Doogan case of 2014, interpreted ‘participation’ narrowly, as ‘hands-on’ performance. As a result, midwives with a religious and ethical objection to abortion, who had worked for decades delivering thousands of babies, found themselves without legal remedy when forced out of their jobs for refusing to supervise or be involved closely with the management of the abortion ward. The Human Fertilisation and Embryology Act 1990, section 38, exempts health care workers from ‘participating’ in experiments on human embryos and other IVF-related activities. And that is about it. We have signed up to various treaties and conventions in which freedom of conscience and religion is a fundamental right, yet their practical effect seems negligible.

Conscientious objection in health care should, in my view, be a fundamental civil right in a liberal, pluralistic society where different religious and ethical codes are supposed to co-exist with a high degree of mutual respect and tolerance. For a hundred years, the UK has given legal protection to conscientious objectors in wartime, whether their objection was broadly ethical or specifically religious. If such an exemption can exist in time of national emergency, surely it should also be allowed, without fear of system malfunction, for health care workers whose professional integrity and sense of duty are bound up with their need to exercise independent judgment as to what, in their professional opinion, best serves the patient without compromising their own ethical code.

It is, in my view, largely an historical accident that issues such as abortion and euthanasia are the flashpoints of most current controversies over conscientious objection. This tends to colour the debate inasmuch as critics object to conscience protection in medicine because they see it as part of a covert agenda to restrict or outlaw abortion or some other practice of which the critics approve. This is a misapprehension. The defence of conscientious objection is about giving legal shelter to health care workers who believe that carrying out a certain practice, or cooperating with it in some fairly proximate way, would violate their deeply held moral or religious beliefs. It is about allowing an individual to withdraw from involvement in a practice, not about denying the availability of that practice at the hands of others.

Would this kind of legal protection turn health care into a kind of ‘free for all’, with practitioners being allowed to opt out of giving perfectly proper and necessary treatment merely because of some moral scruple, however irrational? The worry smacks more of fear-mongering than of rational appraisal. One can never escape grey areas, but we should expect there to be a fair amount of agreement over core treatments and services as to whose ethical status no reasonable health care worker could disagree. To be rather pointed about it, it would be wholly unreasonable for a clinician to have a troubled conscience about saving a life, eliminating a disease, restoring physical health. These are part of the job description of a medical practitioner. If you don’t want to do those things then you cannot be a doctor, either conceptually or practically speaking.

Over a rapidly increasing range of treatments and services, however, reasonable people can disagree. No matter how passionate one’s views about one or other side, it is simply mistaken to hold that reasonable people cannot – for surely they have and do – disagree about the place in health care of abortion, or euthanasia, or transgender surgery, or extreme body modification, or cognitive enhancement, or genome editing – along with so many other practices and treatments just over the technological horizon. Every health care worker – general practitioner, surgeon, consultant, nurse, midwife, and so on – needs to ask themselves where they would draw the line, assuming they have one. (Don’t we all?)

Once they have answered that question, they then need to ask the follow-up: if comprehensive statutory protection for freedom of conscience in medicine is not enacted now, then when would be the right time to legislate for it? If never, then the risk will only increase for many health care workers that at some time in the future they may well find themselves having to choose between their conscience and their calling – suffering potential prejudice, penalty, and discrimination along the way.

 

David S. Oderberg is Professor of Philosophy at the University of Reading and author of the recent Declaration in Support of Conscientious Objection in Health Care. His policy monograph, Conscience and Cooperation in a Pluralistic Society, is soon to be published by the IEA.

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