More on Conscientious Objection: a Repy to a Reply

Guest post by Divine Banyubala

A couple of days ago, Iain raised an interesting question about the draft Conscientious Objection (Medical Activities) Bill, and its compatibility with existing law (both civil and criminal) in respect of withdrawal of life-sustaining treatment.  In an insightful reply, Mary Neal made the points that “in key areas of practice health professionals should benefit from statutory conscience rights that are meaningful and effective”, and that the extant conscience rights are “so narrowly-drawn as to be unfit for purpose”.

Mary’s first claim is that doctors are already under similar guidance from the GMC where they are told they “can opt out of involvement in life-sustaining treatment”.  However, this leaves open a number of questions concerning whether, and why, the GMC’s guidance is ethically defensible; whether, if it is, the guidance should be given statutory force; and whether doing so will make it “meaningful and effective” and “fit for purpose”, at least insofar as that the new conscience rights contained in the Bill do not suffer the very inadequacies she rightly identifies.  It is not clear to me that merely giving legal validity to a guidance without more (no matter how revered the source of the guidance is) automatically confers ethical defensibility or coherence where there was none.  It is my view that any hope that the conscience rights in the Bill will be meaningful and effective or fit for purpose may have to be reassessed. I make just two observations.

The first is that paragraph 79 of the GMC guidance, to which Mary refers, contains an important proviso:

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 accaptable to withdraw from a patient’s care if this would leave the patient or colleagues with nowhere to turn. (Emphasis mine)

It is my contention that a close reading of the GMC guidance shows that the guidance makes it explicitly clear that the professional responsibility to treat/care is above the professional’s right to conscientious objection.  The Draft Bill (and I stand to be corrected here) does not appear to contain any such claw-back clause or constraint.  This this an important difference, and it raises the question about just how sufficient and fit for purpose the current Bill is.  In practice, given that the Bill does not incorporate the proviso in the GMC guidance, the challenge if and when the Bill becomes law will be to settle the prioritisation and possible conflict between the professional duty to treat or care, and the legal right to conscientious objection.

A second point is that whist the distinction between Trust responsibility and individual responsibility put forward is welcome, it raises the question of a lawful conscientious objector becoming a tortfeasor.  Let us examine the following practical situations: if I initiate a particular course of treatment and later assess that treatment to be medically futile, or if I have responsibility for the care of a patient who has now developed a clinical state requiring a particular course of treatment to which the patient consents but to which I (the doctor) now wish to conscientiously object, what will be the response of the law in its current form? May I simply walk away from the patient?

Under the GMC guidance, the answer would be yes, but only if I could find another colleague who is willing and able to continue from where I conscientiously wish to leave; if I cannot find such a colleague, then I may not.  If responsibility in these instances, as Mary seeks to argue, is always wholly that of the health institutions, then health institutions must ensure that at every point in time there is some professional man or woman who will be willing and able to stand in for the conscientious objector(s), or at least, procure the services of such a professional person or persons.  This would seem onerous and may have far-reaching public policy implications (a subject outside the scope of this brief comment).  It must however be observed that the proviso in the GMC guidance properly locates responsibility for the treatment or care of the patient in the professional man or woman, such that where no such willing and able colleague(s) is found, then there is a professional or ethical responsibility or duty to treat/care (whether it be withholding, withdrawing or continuing treatment/care).  If I walked away, I am a lawful conscientious objector (under this Bill) but might I also be a tortfeasor for refusing to discontinue or withhold or withdraw (as the case may be) my own treatment contrary to a competent patient’s expressed choice and when no other colleague is willing and able to do so?

Similar considerations will flow from an obstetrician having responsibility for the care of a pregnant patient who develops pregnancy-induced hypertension but who presents to him or her in 20 weeks of pregnancy with an emergency condition (eg severe pre-eclampsia) requiring hysterotomy (medical abortion) – let us grant for the purposes of argument that this is the only treatment option available – to which treatment the patient has agreed but to which the doctor now wishes to assert his or her legal/ statutory right to conscientiously object.

Finally, just a small point. I recognise that among the certainties in the world are these two: death and scarcity.  In resource-constrained situations, particularly within the context of developing economies like my beautiful country Ghana, where an entire  District with a population of about 200,000 inhabitants may boast of only one doctor, this kind of law may neither be in the public interest nor sufficiently pragmatic.  Of course, I do recognise that though the NHS of the UK has, in the last couple of years, been dogged by financial challenges, the UK is a developed country and the considerations are different.  As a result, it is doubtful that my concerns may be helpful in this debate.

Divine Banyubala is a medical doctor by training, is also a solicitor and barrister at Law and Development Associates (LADA), Accra.  He earned an MA in Healthcare Ethics and Law (2007) and a PhD in Bioethics in Medical Jurisprudence (2014), both from the University of Manchester.  He has worked at the Korle Bu Teaching Hospital, and for the Ghana Health Service from 2008 to 2011, where he founded its Medico-Legal Unit.  Since 2015 he as been a deputy registrar at the Medical and Dental Council, Ghana, and a part-time lecturer in Health Law and Ethical Issues in Healthcare at the School of Public Health and the Business School, Univerisity of Ghana.

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