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.