Guest post by Mary Neal, Law School, University of Strathclyde
The Conscientious Objection (Medical Activities) [HL] Bill, introduced by the crossbench peer Baroness O’Loan, received its second reading in the House of Lords on Friday 26th January and successfully proceeded to the committee stage. In a post on this blog the following day, Iain posed a very reasonable question about clause 1(1)(a) of the Bill. That clause would allow health professionals to refuse to be involved in “the withdrawal of life-sustaining treatment”, and Iain asks how this can be compatible with existing civil and criminal law, under which it is unlawful to fail to withdraw treatment (including life-sustaining treatment) from a competent patient who no longer consents to it, or from a patient who lacks capacity if treatment is no longer in her best interests.
Before responding, I should declare an interest: I’m a spokesperson for the Free Conscience campaign, which supports the Bill. I endorse the Bill’s premise that healthcare professionals should, in key areas of practice, benefit from statutory conscience rights that are both meaningful and effective. This is not currently the case: some professionals who require protection, and are likely to require it even more in future (general practitioners and pharmacists, for example: see my post here) have no statutory protection at all, while others have ‘protection’ that is so narrowly-drawn as to be unfit for purpose. (This was exposed recently by the UK Supreme Court’s judgment in Greater Glasgow Health Board v Doogan [2014] UKSC 68, about which I’ve written here.) The O’Loan Bill would redress both of these deficiencies in the current law.
Iain’s question, however, is specifically about the sub-clause dealing with conscientious objection (CO) to withdrawing life-sustaining treatment, and whether it is compatible with the law relating to unlawful treatment. (He sets out the relevant law in his post, so I won’t duplicate it here.) At least two main points can be made in response to the question he raises.
(i) Existing GMC guidance permits CO to withdrawal of life-sustaining treatment
The first point is that doctors, at least, are already subject to guidance that tells them they can opt out of involvement in the withdrawal of life-sustaining treatment. The General Medical Council (GMC) guidance Treatment and care towards the end of life: good practice in decision making (2014) advises doctors, at paragraph 79, that
You can withdraw from providing care if your religious, moral or other personal beliefs about providing life-prolonging treatment lead you to object to complying with:
(a) a patient’s decision to refuse such treatment, or
(b) a decision that providing such treatment is not of overall benefit to a patient who lacks capacity to decide.”
However, you must not do so without first ensuring that arrangements have been made for another doctor to take over your role. It is not acceptable to withdraw from a patient’s care if this would leave the patient or colleagues with nowhere to turn.
Paragraphs 80 and 47-48 set out the procedure to be followed in case of a dispute, and paragraph 127 confirms that the guidance also permits CO, on the same terms as above, to “withdrawing, or not providing, clinically-assisted nutrition and hydration”.
The British Medical Association (BMA) favours a narrower right of CO. On its website, it states that, in addition to the contexts of abortion and fertility treatment (where statutory rights of conscience already exist), it countenances CO “to withdrawing life-prolonging treatment from patients who lack capacity, where other doctors are in a position to take over the care.” But whereas the BMA supports CO only where the patient lacks capacity, the GMC countenances CO to the withdrawal of life-sustaining treatment from patients with or without capacity. Thus, doctors already practice under guidance that recognises the kind of entitlement that Clause 1(1)(a) would enshrine in statute.
Iain reflects on the various possible forms that a right to opt out of treatment withdrawal might take in practice; some he acknowledges as far-fetched, while others are more plausible. Given the existing GMC guidance, however, we can ask not “what might this mean in practice?” but “what does this mean in practice?” In other words, we can enquire into how doctors currently rely on the existing GMC guidance, asking what form(s) CO takes, how widespread it is, whether it creates significant practical problems, and so on.
Clause 1(1)(a) would put the GMC guidance on a statutory footing and extend it to other relevant health professions (nurses and midwives, for example, are currently able to exercise CO in the two contexts covered by statute: abortion and fertility treatment). Rightly so: why should only doctors be permitted to practice healthcare in accordance with their consciences?
The desirability of the change brought about by Clause 1(1)(a) is one thing, however, and whether it would be compatible with existing law another. The fact that it would largely replicate existing guidance does not necessarily mean there would be no incompatibility.
(ii) Compatibility with the law on unlawful treatment
When a competent patient indicates that she no longer consents to life-sustaining treatment, or when a decision is taken that continued treatment is no longer in the best interests of a patient without capacity, continued treatment is unlawful. In both types of case, the Trust treating the patient has an obligation to ensure that treatment is discontinued urgently. But this obligation belongs to the Trust. (For example, in paragraph 99 of her judgment in Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam), Dame Elizabeth Butler-Sloss, P. explicitly distinguishes between the duties of individual healthcare professionals and the duties of the Trust, and finds that Ms B has been treated unlawfully ‘by the NHS Hospital Trust’.) If an individual professional notifies her employer that she has a belief that forbids her from performing the act of withdrawal (switching off a life support machine, or disconnecting a feeding tube, for example), it is incumbent upon those with management responsibility to assign the task to someone else who has no such objection.
What, other than direct acts of switching off or disconnecting, might be covered by clause 1(1)(a)? For the record, I agree with Iain that palliative care obviously does not fall within the rubric of ‘withdrawal of treatment’, so would not be something to which a professional could object (in the highly unlikely event that any professional would wish to). Otherwise, as noted already, I don’t think there is a need to speculate – we can enquire into current practice under the GMC guidance. Crucially, in terms of Iain’s question, it is difficult to imagine how an individual professional could personally commit a battery (or anything else) while exercising a right under clause 1(1)(a). The only circumstances I can conceive of in which an individual professional who objected to treatment withdrawal might end up committing battery would be if she attempted to reinstate treatment after it had been discontinued. But this seems very far-fetched, and would involve a positive act, whereas the Bill seeks to confer the right not to do something.
How could an individual professional treat a patient unlawfully by not acting? A Trust certainly could, by failing to arrange for the removal of treatment that is no longer consensual, or no longer in a patient’s best interests. Once again, however, this is not an obligation which rests with individual professionals, and this would be even more clearly the case if such individuals had a statutory right to conscientiously object. For all of these reasons, in my view, the existing law relating to battery and unlawful treatment presents no obstacle for this Bill.
Mary Neal is a senior lecturer in law at the University of Strathclyde in Glasgow, researching and teaching medical law and ethics with a particular focus on beginning and end of life issues and rights of conscientious objection. She is a current member of the BMA Medical Ethics Committee and a spokesperson for the Free Conscience Campaign, which supports the Conscientious Objection (Medical Activities) [HL] Bill.