David S. Oderberg, Professor of Philosophy, University of Reading
On March 23rd 2018, the House of Lords will enter the Committee Stage of debate on the Conscientious Objection (Medical Activities) Bill, a Private Members’ Bill sponsored by Baroness O’Loan. It will be a time for line-by-line examination, with many amendments expected to be tabled both by supporters and opponents. As a qualified supporter of the Bill the time is ripe, in my view, to rebut some of the principal objections raised against it by Peers at the second reading, which took place on 26 January.
For those unfamiliar with the Bill, its purpose is to extend conscientious objection protection to health care workers in three areas: abortion; euthanasia by withdrawal of life-sustaining treatment; and artificial reproduction under the Human Fertilisation and Embryology Act. The most striking aspect of the Bill is its extension of protection beyond actual, ‘hands-on’ participation in activities to which a person conscientiously objects – for which some shelter exists already, as in the case of abortion – to activities such as ‘preparation’, ‘support’, ‘supervision’, and ‘delegation’. It was the lack of conscience protection under law in respect of these sorts of activities that led to the failure of the Glasgow midwives in the Supreme Court abortion case of Greater Glasgow Health Board vs. Doogan and Another.
Make no mistake: the Bill is a significant extension of the current meagre protection in the UK for freedom of conscience in health care. As such, it is to be welcomed. Freedom of conscience – the idea that no one should be compelled by the state to violate their most deeply and sincerely held ethical or religious beliefs – has long been recognised in many international treaties and conventions, including those to which the UK is a party. When it comes to the kinds of activity identified by the Bill, there has long been heated and vociferous ethical debate. There is no question that many health care workers, such as the midwives in Doogan, have deep ethical reservations about participating in certain kinds of activity. They fear (and have experienced) the repercussions of expressing their concern, let alone of refusing to participate altogether. More generally, they – and all those who value freedom of conscience – fear becoming mere functionaries of the state on the one hand, or health care valets to their patients on the other, unable to exercise their careful, independent professional judgment about what they are prepared to do in a given situation. I share their concerns, and for that reason have published a Declaration in Support of Conscientious Objection in Health Care, which I hope will receive many signatures from professionals and from all others who support the idea. Perhaps policy makers will take note of the urgency of the situation.
That said, I hope that by rebutting some of the specific objections raised at the second reading a certain amount of unnecessary disagreement can be avoided along with the tabling of amendments that have no logical or evidential justification. Baroness Young insisted that for the Bill to be acceptable, referral to another practitioner must be obligatory in case some patients are unable to gain access to the treatment they desire. In my view, referral is non-negotiable. To refer in matters of conscientious objection is to co-operate with the objected-to activity in a proximate way that implicates the objector in the objected-to act. Baroness Young’s insistence is all the more reason for the opponents of the Bill to engage with its supporters, so as to develop a statutory framework for ensuring less informed patients are able to secure their treatment. The Bill needs provisions concerning what the objector must do: one of these should be to guide the patient back to central administration so a different practitioner can be assigned. But the objector may not refer the patient themselves. This is not hair-splitting. It is a matter of moral integrity going to the heart of conscientious objection.
Lord Dholakia argued that the Bill threatens to ‘undermine the entirely reasonable provisions of 2007’s Mental Capacity Act 2005 Code of Practice, which is very clear that healthcare professionals do not have to do something that goes against their beliefs, but they must not simply abandon patients or cause their care to suffer’. In which case, they should refer their patient to a willing colleague. In reply, the Mental Capacity Act Code of Practice 9.61-9.63 makes no reference to referral. It simply affirms the right to conscientious objection and requires alternative arrangements to be made so no patient is ‘abandoned’. If Lord Dholakia approves of these provisions, he should be enthusiastic about transforming the warm words of the Code of Practice into real statutory protections. He should work with supporters of the Bill to ensure this occurs.
Baroness Young raised a slippery-slope objection to the Bill: ‘Extending the scope of conscientious objection puts us on a path towards allowing some healthcare professionals to opt out of providing even basic end-of-life care. It elevates a healthcare professional’s important personal beliefs above their duty to the patient, putting the needs and wishes of the patient last. It is the very opposite of patient-centred care.’ The problem with slippery-slope arguments, however, is that not all slopes are slippery. There is no evidence to justify the Baroness’ anxiety. One might as well argue, absurdly, that conscientious objection in wartime takes us on a path where the country could not even carry out basic military activity. There is no elevation of anyone’s beliefs or wishes above anyone else’s. On the contrary the Bill seeks, in its own small way, to equalise the fundamental, internationally recognised civil rights of conscientious objectors with the needs and desires of patients. The patient remains at the centre of health care, and with a proper statutory and judicial framework will not lose access to a single service to which they are legally entitled. Opponents of the Bill need to engage with it, not wreck it.
Lord Brown echoed many critics both inside and outside Parliament when he asked: ‘But what amounts to participation? How wide should this statutory exemption go?’ As presently worded, the Bill extends protection to ‘participation’ that goes beyond ‘hands-on’ performance to include such activities as supervision and delegation. For my part, the language of ‘participation’ probably needs to be replaced by the terminology of ‘performance’ and ‘assistance’ (or ‘co-operation’). The Bill does indeed seek to given conscience a shelter from compulsion to assist with acts to which the practitioner objects. The unfortunate midwives in Doogan failed precisely because they lacked that protection. Lord Brown raises a key objection: where are the boundaries? At the risk of flippancy, one might ask: is making a sandwich for the abortionist a form of assistance? Or holding the door open to the surgical theatre?
I agree that this is a key issue for resolution – a reason not for blocking the Bill, but for improving it. There is currently no protection from assistance of (co–operation with) an act of direct participation or performance (what I call the ‘primary act’). That is why we need a civil jurisprudence of co-operation, analogous but not identical to the criminal law of aiding and abetting. The Bill lists a number of co-operative activities, but more clarity is needed. The statutory framework should appeal to what might be called a ‘reasonableness test’ of what constitutes assistance with the primary act. Examples can be listed (e.g. delegation and supervision), but a general principle of what we might term proximate co-operation amounting to assistance should be laid down, with the task falling on the good sense of judges to develop a civil law of co-operation. This will take years to evolve, but it is absolutely necessary.
As I said at the beginning, I am a qualified supporter of the Bill currently before the Lords. I am uneasy about special ‘carve-outs’ for health care workers involved in specific kinds of activity. I am also concerned that the entire debate over freedom of conscience in health care will end up revolving around one’s personal view of the morality of some particular kind of act – abortion, euthanasia, and so on. The debate is not about specific activities, however. It is really about the ever-accelerating advance of medical technology, with the attendant certainty that more and more practitioners will find themselves troubled by questions of conscience over issues that are not about the beginning or end of life. Critics of the Bill should not allow their view to be skewed by their feelings about abortion, passive euthanasia, or artificial reproduction. They must focus on the wider picture. I would prefer a ‘go big or go home’ approach: if now is not the time for a comprehensive Bill protecting freedom of conscience in health care, when is? On the other hand, if this is simply not practicable right now, the Conscientious Objection (Medical Activities) Bill is an excellent start.
- Competing interests: none declared