By Iain Brassington
Baroness O’Loan’s Conscientious Objection Bill had its second reading in the House of Lords yesterday. It’s only short, but there’s a part of it that I find a little perplexing.
Section 1(1) says that
No medical practitioner with a conscientious objection to participating in—
(a) the withdrawal of life-sustaining treatment;
(b) any activity under the provisions of the Human Fertilisation and Embryology Act 1990; or
(c) any activity under the provisions of the Abortion Act 1967, including activity required to prepare for, support or perform termination of pregnancy,
shall be under any duty to so participate.
Put (b) and (c) to one side – they’re perennially controversial, and so not all that interesting for my question here. It’s (a) that’s bothering me. I can’t work out how to make sense of it.
How is it compatible with the law as it stands in respect of battery? We know that non-consensual touching counts as battery, and that this means that treatment cannot be given to someone who is in a position to consent but who has not consented. This goes so far as to mean that even life-saving treatment must be withdrawn once administered if the patient requires it. Re B confirmed that, but it was pretty clear which way the decision would have to go. That being the case, it’s hard to see what conscientious objection would amount to: it can’t possibly be a right to administer treatment contrary to the patient’s expressed wishes. Neither – as established in Burke – does a patient have any right to require treatment deemed not to be in the patient’s best interests, and so conscientious objection wouldn’t apply there. (I mean, I can’t see how it possibly could anyway, but it’s worth raising just for the sake of getting it out of the way.) Besides: the Bill refers to the withdrawal, not the provision of treatment.
When a patient is not able to give consent, treatment may be provided insofar as that it is in the patient’s best interests. From that, we can deduce that where it is not in the patient’s best interests, treatment may not be given. Futile treatment, by definition, cannot be in the patient’s best interests. In Bland, Stephen Munby had argued that “feeding is never futile”, but this line of argument was rejected; Lord Goff commented that
I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. [… I]n the end, in a case such as the present, it is the futility of the treatment which justifies its termination. I do not consider that, in circumstances such as these, a doctor is required to initiate or to continue life-prolonging treatment or care in the best interests of his patient. It follows that no such duty rests upon the respondents, or upon Dr Howe, in the case of Anthony Bland, whose condition is in reality no more than a living death, and for whom such treatment or care would, in medical terms, be futile.
Law is a poor guide to ethics, and it is always subject to ethical scrutiny; I think that that’s ethically sound. Something is not warranted simply because it’s life-preserving. Treatment that does nothing more than sustain brute biological function does not serve patients’ best interests; legally, it may be a battery. And so conscientious objection to withdrawal wouldn’t seem to have any teeth there. A medic could not, I think, plausibly insist that his conscience dictated that he must maintain futile treatment that others would withdraw.
Now, if conscientious objection to withdrawal of treatment doesn’t mean a right to provide treatment that has been refused or that is futile – and it does not because it cannot, either legally or (I would contend) morally – I’m struggling to come up with a coherent account of what it’s supposed to mean.
The only way I can see it applying is in situations in which the decision is made to withdraw treatment, and someone is permitted to recuse themselves from… well, what? Palliation? But that seems monstrous, and potentially staggeringly pusillanimous on the part of the objector. (“Alice has refused life-sustaining treatment. Well, she can bloody well take what’s coming to her.”) It would also require a somewhat creative interpretation of the proposed law itself, which says nothing about palliation, and it’s implausible that palliation would count as an inseparable component of withdrawing treatment. Yet anything else would seem to be simply a permit not to provide the primary treatment, which is precisely what withdrawal is all about.
What’ve I missed?
One possibility has been suggested to me by Lindsay Stirton, which is that it’s purely symbolic. I’d like not to think that we’re in the business of legislating for gesture politics. But, alas, I’m finding it increasingly difficult to resist that.