Patient and society’s demands have given rise both to changes in ideas about the goals of medicine and to changes in medical practice. Many of these changes are welcome improvements to medicine and to the relationship between healthcare professionals and patients.

However, problems in this relationship can arise when patients demand procedures and treatments which are not obviously oriented to the preservation or restoration of health. Some of these may have benefited from controversial research or involve contested techniques. Healthcare professionals may be morally conflicted about participating in certain service provision.

Recognising this, democratic societies protect their right to avoid participation in activity which is incompatible with their conscience. “Conscience” in this sense is an individual’s inner reflection which produces a moral judgment. It may be informed and reinforced by religious faith, but this is not a prerequisite.

The point is often made that accommodating conscience rights risks restricting or even preventing patient access to lawful medical services. For this reason, the law strikes a balance between the legal entitlements of patients and the conscience rights of healthcare professionals.

The Irish government’s intended legislation following the constitutional referendum in May would permit “termination of pregnancy”. This is defined as a procedure “intended to end the life of the foetus”.[1] Evidence is lacking which would demonstrate that a procedure specifically intended to end the life of the foetus over and above ending the pregnancy is necessary to avoid a risk to a pregnant woman’s life or to her health.

Healthcare professionals are required to practice evidence-based medicine.[2] Many doctors consider that the intentional destruction of a foetus is not “healthcare” and that an obligation to refer a patient to another healthcare provider who would provide this service would make them complicit in an immoral and unethical act. They demand a more robust formula which protects the full conscience rights of all healthcare professionals. This is seen as particularly necessary when contested treatments or procedures are legal and may be directed by senior staff or employer institutions.

The medical literature reports that denial of conscience rights is a cause of doctors’ disillusionment, burnout and disengagement from particular areas of practice. It is also said to desensitise doctors to suffering and consequently to risk callousness towards patients.[3]

The medical profession, patients and society benefit by the participation in healthcare of morally serious individuals with a wide range of perspectives who will not follow orders unquestioningly.[4] Any profession, particularly one which often demands value judgments, that excludes individuals whose conscience or religious beliefs might challenge its consensus, would be morally impoverished. Our pluralist and democratic society is surely more tolerant than this.

The government has decided to introduce an “opt-in” system for the provision of “termination of pregnancy”. Its scheme will enable prospective patients to identify healthcare workers who will provide “termination of pregnancy” and prospective patients will be able to self-refer.

There is no rational basis for the much-cited argument that providing for conscience rights will prevent access to this service. In this case, there is fortunately no conflict between full protection for conscience rights of healthcare workers and the rights of women seeking treatments and procedures intended to end the life of a foetus.

New Zealand’s Contraception, Sterilisation and Abortion Act 1977[5] and the Conscientious Objection (Medical Activities) Bill[6] presented in the House of Lords by Baroness Nuala O’Loan offer some guidance. Irish legislation could protect the exercise of conscience rights regarding participation in “termination of pregnancy” as follows:

  1. Respect for their conscience rights requires that healthcare workers shall not be obliged to participate in any activity, including activity required to prepare for, support or perform “termination of pregnancy”,
  2. “healthcare workers” includes doctors, nurses, midwives, pharmacists and also other individuals engaged in work ancillary to the provision of “termination of pregnancy”,
  3. “participating in an activity” includes accommodation, supervision, delegation, planning or supporting staff regarding that service, or referral of the patient to other healthcare workers,
  4. An employer must not discriminate against or victimise an employee or prospective employee who exercises or who may exercise his/her conscience in relation to his/her employment or access to opportunities for employment, promotion, transfer, training or for receiving any other benefit or service, or in selection for redundancy or dismissal or by subjecting the employee to any other detriment.

The Council of Europe Parliamentary Assembly ruled in 2010 that

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion..”[7]

Member states of the Council of Europe are encouraged to guarantee conscience rights in legal regulations. The government’s legislation should protect the conscience/ethos of hospitals and institutions.

Caroline Simons is a lawyer in Dublin.

Notes 

[2] Medical Council. Guide to Professional Conduct and Ethics for Registered Medical Practitioners. 8th edition 2016, paras. 6.1, 42.5, 42.6, 48.3.

[3] Birchley, G. A clear case for conscience in healthcare practice. Journal of Medical Ethics. 2012; 38(1): 13-17, 16.

[4] Gerrard, J.W. 2009. “Is it ethical for a general practitioner to claim a conscientious objection when asked to refer for abortion?”, Journal of Medical Ethics, 35, pp. 599 -602; Lynch, H.F. 2010. Conflicts of Conscience in Health Care: An Institutional Compromise, Cambridge MA: MIT Press.

[7] Council of Europe Parliamentary Assembly. Resolution 1763 (2010) Final version. The right to conscientious objection in lawful medical care

Caroline Simons

Caroline Simons BCL LLM Solicitor, lives in Dublin, Ireland and is currently engaged in postgraduate legal studies in Britain. She contributed to the recent House of Commons Science and Technology Committee...