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Law

Recent Attempts to Restrict the Abortion Law in Poland: A Commentary

25 Apr, 16 | by BMJ

Guest post by Dr Atina Krajewska, University of Sheffield

A couple of weeks ago news hit the headlines about attempts to introduce a total ban on abortion in Poland.  The legislative proposal that caused outrange among women’s rights organisations has been drafted by a citizen’s initiative, “Stop Abortion”, and is the fourth attempt to restrict abortion access to have been given a parliamentary hearing in Poland in the last 5 years.  The proposal must be supported by 100 000 signatures before it can be voted in Parliament.  However, as this threshold has been easily met in the past, it is worth reflecting on its causes and possible legal and social consequences for Poland and Europe.

Current law

Poland is well known for its conservative approach towards reproductive rights.  The current Act on Family Planning, from 1993, extends the protection of the right to life to the prenatal phase of human life.  It allows doctors to perform lawful abortions in only three sets of circumstances: when a) the pregnancy constitutes a danger to the life or health of the mother; b) prenatal tests suggest a high risk of a serious and irreversible abnormality or a severe life-threatening illness of the foetus; c) there is a justified suspicion that the pregnancy is a result of a criminal act (rape or incest).  A lawful termination can take only place within the first 12 weeks of pregnancy.  The Act has been often criticised as one of the most restrictive in Europe.

Nevertheless, despite popular belief, it is not the current law that seems to lie at the root of the problem.  The reason for the limited access to abortion services for women is not the restrictive legislation, but its highly limiting and narrow interpretation and incorrect implementation.  Poland has recently lost three major cases before the European Court of Human Rights (Tysiac, R.R., and P & S) due to the lack of adequate procedures guaranteeing the full exercise of statutory rights and medical practice substantially limiting access to lawful abortions.  For the first time in the abortion context, the Court found that the actions of Polish authorities and medical professionals have met the threshold of inhumane and degrading treatment, set in Article 3 of the European Convention on Human Rights. Poland is the best example of how social, historic and political circumstances led to the bifurcation of different forms of legality, i.e. to discrepancies between formal and informal rules, between law and other – ethical and social – norms.

The new proposal

The new bill “on the general protection of human life and preparation for family life” defines “prenatal life” as starting from the moment of conception, which is described as “the fusion of the female and male gametes”.  The same definition applies to the term “conceived child”, used in the Polish criminal code.

Crucially, the Bill proposes to delete all three conditions under which lawful abortion is currently permitted.  This, of course, constitutes a dramatic departure from the current legal framework, and converts the current legislation into an administrative tool setting general directions for (limited) sexual education and social care necessary for families affected by the new regulation.  At the same time, and more importantly, the new proposal sets out changes to the Polish criminal code, according to which ‘the causation of the death of a conceived child’ would carry a sentence between 3 months and 5 years of imprisonment.  The same sanction would apply if someone were to assist with, or incite, abortion.

There is only one exception. more…

No to Conscientious Objection Accommodation in Health Care

22 Apr, 16 | by BMJ

Guest post by Udo Schuklenk

Canada is currently in the midst of a national debate about the scope of assisted dying regulations and policies.  It’s a result of a 2015 Supreme Court ruling that declared parts of the country’s Criminal Code null and void that criminalises assisted dying.  As you would expect, there is a lot of forth and back happening between proponents of a permissive regime (à la Belgium/ Netherlands), and those who would like a restrictive regime.  Another issue is being debated as well as litigated in the courts, the seemingly intractable question of conscientious objection accommodation.

In preparation for incoming provincial policies on assisted dying, the provinces’ statutory medical bodies, such as for instance the College of Physicians and Surgeons of Ontario, have stipulated that while doctors are not obliged to provide directly assistance in dying to eligible patients, they must transfer patents on to a colleague who they know will provide that service.  A similar stance has been taken in the recommendations issued by an expert advisory group appointed by the country’s provinces and territories, who are ultimately responsible for health care.  The same holds true for a report issued by a special joint parliamentary committee of the country’s national parliament.  Unsurprisingly, religious doctors’ groups, but not only religious doctors’ groups, are all fired up about this and have taken, for instance, the Ontario College to court to stop this policy from being implemented.  Their argument is that conscientious objectors among its members must not be forced to provide even this level of assistance if their conscience dictates otherwise.

It is likely that the compromise reached will entail an obligation on health care professionals to transfer patients on to a willing health care professional.  That will not satisfy the objectors, because if you really hold the view that assisting a competent patient who meets the criteria stipulated by the Supreme Court is tantamount to murder, this compromise would simply translate into you passing on your patient to someone who you know would ‘murder’ that patient.  It is also not satisfactory from the patient’s perspective, because they could – depending on where they live – be forced to travel great distances in order to meet the obliging health care professional.  That could well prevent some patients from access to an assisted death.

The question arises why we should accommodate conscientiously objecting health care professionals in the first place.  It is somewhat taken as a given in much of the medical ethics literature that conscientious objectors are deserving of some kind of accommodation.  Arguments often focus on what makes a conscientious objection deserving of accommodation, and on what reasonable limits should be imposed on conscientious objectors, as opposed to the question of whether conscientious objectors deserve accommodation at all.

In our paper we develop a more radical argument for the view that health care professionals have no moral claim to conscientious objection accommodation in liberal democracies.  We put forward a number of arguments to support that conclusion.  For starters, it is impossible to evaluate the truth of the authoritative documents that motivate particular consciences.  The courts in many jurisdictions that have had to deal with conscience related cases have conceded that much.  It turns out that we also actually cannot test whether someone’s conscience claims are actually true, in the sense that that person actually has those convictions.  It might just be a convenient cop-out, and yet we readily accommodate objectors at great inconvenience to patients and significant cost to health care systems.

Why should we accommodate privately held convictions that objecting professionals would like to prioritise over their professional obligations to patients?   That demand seems unprofessional in its own right.  The promise to serve the public good and the individual patient first goes right out of the window, there and then.  These professionals joined their profession voluntarily and they knew that the scope of professional practice and their obligations to patients wouldn’t be defined by them personally, and also that changes to scope would invariably occur over time.  The content of conscientious objections is by necessity arbitrary and encompasses any number of practical refusals to provide services.  No health care system should permit its monopoly service providers that sort of freedom when it comes to the delivery of the very same services that they voluntarily contracted to deliver.  Permitting such conscience accommodations ultimately subverts the very reasons for why society has professions in the first place.

 

Udo Schuklenk tweets @schuklenk

Read the full paper here.

Why Brits? Why India?

3 Apr, 16 | by Iain Brassington

Julie Bindel had a piece in The Guardian the other day about India’s surrogate mothers.  It makes for pretty grim reading.  Even if the surrogates are paid, and are paid more than they might otherwise have earned, there’s still a range of problems that the piece makes clear.

For one thing, the background of the surrogates is an important factor.  Bindel writes that

[s]urrogates are paid about £4,500 to rent their wombs at this particular clinic, a huge amount in a country where, in 2012, average monthly earnings stood at $215.

It’s tempting, at first glance, to look at the opportunity to be a surrogate as a good thing in this context: these women are earning, by comparative standards, good money.  But, of course, you have to keep in mind that the standard is comparative.  If your choice is between doing something you wouldn’t otherwise do and penury, doing the thing you wouldn’t otherwise do looks like the better option.  But “better option” doesn’t imply “good option”.  So there’s more to be said there; more questions to be asked.  Choosing x over y because y is more awful doesn’t mean that x isn’t.  It might be a good thing; but it might not be.  There might be economic – structural – coercion.  Choosing to become a surrogate might be a symptom of there being no better alternative.

A related question is this: are the women really making a free choice in offering their reproductive labour even assuming that the terms are economically just?  Possibly not:

I have heard several stories of women being forced or coerced into surrogacy by husbands or even pimps, and ask Mehta if she is aware of this happening.  “Without the husbands’ [of the surrogates] consent we don’t do surrogacy.”

Note (a) the non-denial, and (b) the tacit acceptance that it’s the husband’s decision anyway.  That’s not good.

(In a wholly different context, I’ve recently been reading David Luban’s Lawyers and Justice, and – in a discussion about lawyers cross-examining complainants in rape cases, he makes this point:

([H]ere we have two people who are confronted by powerful institutions from which protection is needed.  The defendant is confronted by the state [that is: in any criminal trial, the defendant does need protection from the power of the state – IB], but the victim is confronted by the millennia-long cultural tradition of patriarchy, which makes the cliché that the victim is on trial true.  From the point of view of classical liberalism, according to which the significant enemy is the state, this cannot matter. But from the point of view of the progressive correction of classical liberalism, any powerful social institution is a threat, including diffuse yet tangible institutions such as patriarchy. (p 151)

(The sentiment would seem to apply here.  A view of human agency that sees liberty as being mainly or only about avoiding state interference is likely to miss all kinds of much more subtle, insidious pressures that are liberty-limiting.  Economic factors are such pressures.  The idea of the wife as property is another.)

I do wonder if readers of this blog might help out with answering one more question, though. more…

Nurses Cannot be Good Catholics

31 Mar, 16 | by BMJ

Guest Post by John Olusegun Adenitire

It seems that if you are a nurse you cannot be a good Catholic.  Or, better: if you want to work as a nurse then you might have to give up some of your religious beliefs.  A relatively recent decision of the UK Supreme Court, the highest court in the country, seems to suggest so.  In a legal decision that made it into the general press (see here), the Supreme Court decided that two Catholic midwives could not refuse to undertake administrative and supervisory tasks connected to the provision of abortions.

To be sure, no one asked the nurses to directly assist in the provision of abortions.  The Abortion Act 1967 says that “No person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.”  The Nurses argued that this provision of the Act should be understood widely.  Not only should they be allowed to refuse to directly assist in abortion services: they should also be entitled to refuse to undertake managerial and supervisory tasks if those were linked to abortion services.  The nurses’ employer was not impressed; neither was the Supreme Court which ruled that the possibility to conscientiously object only related to a ‘hands-on’ capacity in the provision of abortion services.

In a recent paper in the JME (available here) I have argued, albeit only indirectly, that this decision is only half-correct.  Nurses and other medical professionals have a human right to object to the provision of a wide range of services which they deem incompatible with their conscience.  I say that the decision of the Supreme Court is only half-correct because the Court explicitly avoided investigating the possibility of the nurses’ human right to conscientious objection.  Under the Human Rights Act, individuals have a right to freedom of conscience and religion.  That right may, in appropriate circumstances, entail the right for nurses to object to being involved in administrative and supervisory duties connected with abortion services.  If you ask me how the Supreme Court avoided having to consider the nurses’ human right to freedom of conscience and religion I couldn’t tell you.  I bet neither could any of the Law Dons at Oxford.

I realise that by appealing to human rights I am not necessarily making the nurses’ case any more deserving of sympathy that it already is(n’t). more…

Autism, Mental Illness, Euthanasia and the WaPo

5 Mar, 16 | by Iain Brassington

There was a piece in the Washington Post the other day with a striking headline: Where the Prescription for Autism can be Death.

Normally, if we’re saying that the prescription for x is y, we mean to say that y is being suggested as a treatment for x.  Painkillers are the prescription for a bad back, a steroid cream the prescription for eczema, and so on.  Even if you find that phrasing a bit clunky, “prescription” implies the recommendation of a medical expert.  On that basis, the implication here is that somewhere in the world, doctors are seeing patients, diagnosing autism, and saying, “I wonder if the best thing would be to kill you”.  That would be uiruite a Big Deal.

The place in question is Holland.  But a quick look at the article shows – surprise, surprise – nothing of what’s hinted at in the headline.  Here’s the opening few sentences, edited slightly for formatting:

In early childhood, the Dutch psychiatric patient known as 2014-77 suffered neglect and abuse.  When he was about 10, doctors diagnosed him with autism.  For approximately two decades thereafter, he was in and out of treatment and made repeated suicide attempts.  He suffered terribly, doctors later observed, from his inability to form relationships: “He responded to matters in a spontaneous and intense, sometimes even extreme, way. This led to problems.”

A few years ago, 2014-77 asked a psychiatrist to end his life.  In the Netherlands, doctors may perform euthanasia — not only for terminal physical illness but also upon the “voluntary and well-considered” request of those suffering “unbearably” from incurable mental conditions.
The doctor declined, citing his belief that the case was treatable, as well as his own moral qualms.  But he did transmit the request to colleagues, as Dutch norms require.  They treated 2014-77 for one more year, determined his case was, indeed, hopeless and, in due course, administered a fatal dose of drugs.  Thus did a man in his 30s whose only diagnosis was autism become one of 110 people to be euthanized for mental disorders in the Netherlands between 2011 and 2014.

So, then, it’s a story about a man, who happened to be autistic, and who asked a psychiatrist for euthanasia.  After a little to-ing and fro-ing, that request was granted.  There is no reason to believe that this was a case of death being prescribed for autism.  It’s just that he happened to be autistic and to want to die, and a prescription for assistance was provided.  Phrasing is important.

Dutch law on assisted dying is famously liberal; in considering the permissibility of euthanasia for psychiatric as well as somatic illnesses, it is in the minority of the minority of jurisdictions that consider the permissibility of any euthanasia.  I have addressed the question of psychological suffering in relation to euthanasia elsewhere, and shan’t rehearse the details here; suffice it to say, I don’t see any reason in particular to think that mental illness and physical illness should be treated all that differently in principle: more…

Homeopathy, Blacklisting, and the Misuse of Choice

15 Nov, 15 | by Iain Brassington

It seems that homeopathy might at last be facing some serious opposition from within the NHS, with the prospect of its being blacklisted being considered.

There’s any number of people who’ll be entirely on board with that. Homeopathy doesn’t work.  Of course, a lot of medicines turn out not to work, or not to work well.  But the difference between homeopathy and unsuccessful drugs is that the latter are at least more likely to have a plausible mechanism – roughly, one of throwing molecules at other molecules, or coaxing the body to throw molecules at molecules.  Homeopathy doesn’t even have that.  It relies on water having a memory.

At the very best, it contributes nothing. But it does cost money – not much, but more than none, and in the end, the taxpayer has to pony up for it.  Money is being wasted every time the NHS pays for homeopathic treatment, and that looks to be unjust.  (It’s not the most unjust thing in the world, but that’s neither here nor there.  Wrongs are wrongs, even if harms might vary.)

It might even get in the way of effective treatments, if patients use it rather than them.  That might mean that they’re worse off than they could otherwise be.  At the outside, it might mean that they’re a danger to others – they might be spreading illness by dint of not getting treated properly for it.

To that extent, Simon Singh strikes me as being bang on the money: more…

Stop What You’re Doing: This is Important.

14 Oct, 15 | by Iain Brassington

I’d not realised it, but the latest iteration of the erstwhile Medical Innovation Bill – colloquially known as the Saatchi Bill – is up for debate in the Commons on Friday.  This is it in its latest form: to all intents and purposes, though, it’s the same thing about which I’ve blogged before.

In a nutshell, the Bill does nothing except remove protections from patients who would (under the current law) be able to sue for negligence in the event that their doctor’s “innovative” treatment is ill-founded.

Much more articulate summaries of what’s wrong with the Bill can be found here and here, with academic commentary here (mirrored here on SSRN for those without insitutional access).  There have been amendments to the Bill that make the version to be discussed on Friday slightly different from that analysed – but they are only cosmetic; the important parts remain.

Ranged against the Bill are the Medical professional bodies, the personal injuries profession, patient bodies, and research charities.  In favour of the Bill are the Daily Telegraph, a few people in the Lords who should know better (Lord Woolf, Lady Butler-Sloss: this means you), and Commons MPs who – understandably – don’t want to be seen as the one who voted against the cure for cancer.

Gloriously, Christ Heaton-Harris, who introduced the Bill, did so only after winning the ballot for Private Members’ Bills.  In a nutshell, he was allotted Parliamentary time, and then began the process of wondering what to do with it – which suggests that even the Bill’s sponsor doesn’t have a burning commitment to the cause – or, at least, didn’t when he took it on.

Still, the Bill has the support of Government; as it stands, there’s a good chance that it’ll pass.

SO: Take a few minutes to look up your MP’s email address – you can do that by following this link – and drop him/ her a line to encourage them to vote against the Bill.

Do it.

Assisted Dying’s Conscience Claws

11 Sep, 15 | by Iain Brassington

Aaaaaaaand so the latest attempt to get assisted dying of some sort onto the statute books in the UK has bitten the dust.  I can’t say I’m surprised.  Watching the debate in the Commons – I didn’t watch it all, but I did watch a fair chunk of it – it was striking just how familiar the arguments produced by both sides were.  It’s hard to shake the feeling that, just as is the case with the journals, the public debate on assisted dying has become a war of attrition: noone has much new to say, and in the absence of that, it’s simply a matter of building up the numbers (or grinding down the opposition).  The Nos didn’t win today’s Parliamentary debate because of any dazzling insight; the Ayes didn’t lose it because their speakers were measurably less impressive than their opponents’.  If the law does change in the UK, I’d wager that it’ll be because of demographic brute force rather than intellectual fireworks.

(Every now and again I hear a rumour of someone having come up with a new approach to assisted dying debates… but every now and again I hear all kinds of rumours.  I live in hope/ fear: delete as applicable.)

Still, I think it’s worth spending a little time on one of the objections that’s been raised over the last couple of days to this Bill in particular; it’s an objection that was raised by Canon Peter Holliday, the Chief Executive of a hospice in Lichfield:

In an interview with the Church of England, Canon Holliday said: “If there is no possibility within the final legislation for hospices to opt out of being a part of what is effectively assisted suicide, then there is nervousness about where our funding might be found in the future. Would the public continue to support us and indeed would the NHS continue to give us grants under contract?”

Canon Holliday said the Assisted Dying Bill also contains no opt out for organisations opposed to assisted suicide in spite of high levels of opposition to a change in the law amongst palliative care doctors. Where hospices did permit assisted suicide the potential frictions amongst staff could be ‘enormous’ with possible difficulties in recruiting doctors willing to participate, he said.

“The National Health Service requires us, in our contracts, to comply with the requirements of the NHS. Now if the NHS is going to be required to offer assisted dying there is of course the possibility that it would require us or an organisation contracting with the NHS also to offer assisted dying. If we as an organisation were able, and at the moment under the terms of the bill there is no indication we would be able, but if we were able to say that assisted dying was not something that would happen on our premises, would that prejudice our funding from the NHS ?”

Is this worry well-founded? more…

Making the Jump to a Medico-Legal Career

15 Jul, 15 | by BMJ

Guest Post by Daniel Sokol

On a number of occasions, I have been asked by early career ethicists about the move from ethics to law, or the wisdom of seeking a legal qualification to supplement their ethical knowledge. In the UK, this can be achieved remarkably quickly. This blog post is an answer to those questions, based only on my own experiences.

In 2008, I was a lecturer in medical ethics and law at St George’s, University of London. I had no legal training, and felt uncomfortable teaching law to medical students. Some of the graduate students were former lawyers and it must have been obvious to them that the limits of my legal knowledge extended no further than the PowerPoint slide.

That year, an old school friend, a solicitor, encouraged me to become a lawyer. “I can imagine calling you ‘My learned friend‘ in court”, he said. And so the seed was planted, and with each soul-sapping marking session, and each article published and quite unread, the seed grew until, in 2009, I resigned from my lectureship to study on the law conversion course, now called the Graduate Diploma in Law (GDL). more…

The Legal and Moral Significance of Implantation

23 Jun, 15 | by BMJ

Guest post by Sally Sheldon

We tend to talk about contraception and abortion as if they were two separate and readily distinguishable practices, the former preventing pregnancy and the latter ending it. This understanding has a very important effect in current British law, where a relatively permissive approach to the availability of contraception stands in stark contrast to the morally grounded, onerous criminal sanctions against abortion. Yet is the distinction between abortion and contraception really so clear cut?  How and why do we make it? And is the line that we have drawn between the two morally defensible?

As a matter of biological fact, the development of human life is not characterised by bright lines. As the eminent lawyer Glanville Williams once put it, “abstract human life does not ‘begin’; it just keeps going.” A seamless biological continuum exists through the production of sperm and egg, their joining together in a process of fertilisation, the gradual development of the new entity thus created throughout pregnancy, birth, subsequent growth, eventual death and ensuing decay of the body. Defining what happens along the way as an ‘embryo’, ‘fetus’, ‘person’, ‘adult’, or ‘corpse’ requires an attempt to draw lines on the basis of criteria selected as holding significance for legal or other purposes. How and where we draw such lines is a tricky business, involving careful moral reflection informed by medical fact.

The “regulatory cliff edge” between the relatively permissive regulation of contraception and the criminal prohibition of abortion relies on a line drawn on the basis of the biological event of implantation, where the fertilised egg physically attaches itself to the wall of the womb some six to twelve days after ovulation. Yet while enormous legal weight has been placed upon it, little consideration seems to have been given as to why implantation matters morally. The voluminous philosophical literature on the ethical status of the human embryo and foetus offers little support for the view that implantation is an important marker.

Further, while it might once have been suggested that implantation offers a conveniently timed moment for a necessary gear change between the appropriate regulation of contraception and abortion, this argument is difficult to sustain in the light of modern medical science. more…

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