Selective Conscientious Objection in Healthcare

Abstract

Most discussions of conscientious objection in healthcare assume that the objection is universal: a doctor objects to all abortions. I want to investigate selective objections, where a doctor objects to one abortion but not to another, depending on the circumstances. I consider not only objections to abortion, but also objections to the withdrawal of life-saving treatment at the request of a competent patient, which is almost always selective. I explore how the objector might articulate the selective objection, and what impact it might have on the patient, within the conceptual space of relevant statutes and professional guidelines.

KEYWORDS:

• Conscientious objection
• abortion
• withdrawal of treatment
• moral disagreement

ORCID

Christopher Cowley http://orcid.org/0000-0002-7901-9892

Notes on contributor

Christopher Cowley is currently working on medical ethics, the philosophy of criminal law, moral psychology, philosophy of action, and a group of topics under the broad heading of the philosophy of autobiography.

Notes

1 There has been very little discussion in the medical ethics and law literature about selective conscientious objection, with the exception of two rich articles by Stephen Smith (2015 and 2018), which influenced a good deal of this paper. I also thank Smith for discussion on this topic, and for his comments on an earlier draft.

2 There is a separate and long-standing debate surrounding military conscription, and whether conscientious objection, if permitted, can be selective or must be universal. Philosophical discussion reached a head during the Vietnam War in the 1960s and 70s. Traditionally, conscientious objection was only available to universal objectors who could demonstrate a religiously-grounded pacifism. The US Supreme Court's Seeger (1965) decision expanded this to a universal objection based on an articulate and coherent secular pacifism. The SC's Gillette (1971) case then allowed a selective (and secular) objection to the Vietnam War (coupled with Gillette's declared willingness to fight a defensive war). See Malament (1972) and more recently, Yiannaros (2018) for discussion. Clearly the military context differs from the healthcare context because of the element of compulsion; in contrast, nobody is forced to become a doctor, or to become a specialist in a context that would raise issues of conscience.

3 A number of philosophers, most famously Julian Savulescu (2006), have argued that conscientious objection to a lawful request for an abortion is never permissible for healthcare professionals with the authority and/or expertise to authorize or perform abortions. This is because (i) no individual was forced to become a doctor, to train for a particular specialism, or to work in a particular jurisdiction; (ii) no doctor should be able to pick and choose those elements of her job description that she will or will not perform; (iii) any doctor who is opposed to a particular law or to a particular health policy has other democratic channels in which to voice her protest and seek change, while performing all the tasks she is paid to provide during working hours.

4 As a philosophical aside, it could be argued that all CO is selective, since the possibility remains of a doctor with a putatively universal CO encountering a patient or situation that is so morally distressing to the doctor that it leads her to countervail her CO and authorize the abortion. Moving in the other direction, a doctor might have a more-or-less articulated selective CO, but who finds after many years of practice that no patients have fulfilled her conditions, and therefore her CO has become effectively universal.

5 The section continues with the following clause: ‘Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it’. In practice, it is enough for a GP to declare their CO. Some philosophers (e.g. Card 2016) have called on doctors to defend their CO before a dedicated tribunal, much as American draftees were required to do so during the Vietnam War. I will not enter that debate here, although I will return to one aspect of it later. Suffice to say that the motives for lying about a CO to military service (cowardice, comfort or civilian ambition) are much clearer than any motives about why a doctor would lie about a CO to authorizing abortion.

6 Later in the same clause, the reference to ‘any existing children of her family’ might refer to a situation where e.g. a single mother already has one or more children and simply does not have the time, energy or money to be good enough parent to another one. Once again, the GP might have interpretative leeway in judging whether this is enough of a reason to terminate the pregnancy. This condition differs from the ‘mental health’ condition, however. While the GP has some expertise to diagnose mental health, she may lack the expertise and information to evaluate the particular patient's socio-economic situation. This would suggest that she should defer to the patient's understanding of her needs, or at least defer to e.g. a proper assessment by a social worker.

7 Another way to put this distinction is in terms of autonomy. Vertigo constrains my autonomy; whereas a moral incapacity expresses my autonomy. On this see Gerald Dworkin (1988).

8 According to the Brook website, just over 1% of all abortions were carried out on these grounds. See: https://www.brook.org.uk/our-work/abortion-law-and-disability [accessed May 2019].

9 The BMA Ethics Department, ‘The Law and Ethics of Abortion’, November 2007. Available at: http://www.bma.org.uk/-/media/files/pdfs/news%20views%20analysis/lawethicsabortionnov07.pdf [accessed May 2019].

10 http://news.bbc.co.uk/2/hi/uk_news/england/hereford/worcs/4354469.stm [accessed May 2019].

11 In a separate but not unrelated context, the Human Fertilisation and Embryology Act 1990, schedule 2, s. 3.1ZB states: ‘A licence under paragraph 1 cannot authorise any practice designed to secure that any resulting child will be of one sex rather than the other’. The only exception to this are sex-linked genetic diseases.

12 GMC ‘Personal beliefs and medical practice’. See: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/personal-beliefs-and-medical-practice/personal-beliefs-and-medical-practice [accessed June 2019].

13 I say ‘lead’ rather than ‘cause’ in order to keep things as neutral as possible for the moment. There is an open question whether the withdrawal causes the death that would otherwise not have occurred at the moment it did.

14 The General Medical Council (2010) Treatment and care towards the end of life: good practice in decision making, available at https://www.gmc-uk.org [accessed January 2019]. I describe Paragraph 79 objections as ‘almost’ always selective, because there might be some doctors (sometimes called ‘vitalists’) who object to ever removing LST: patients should be treated right up until they die of organ failure. I will assume that such universal objections are rare, and will ignore them for the rest of this paper. Even strongly Catholic doctors can accept that the patient is dying and that it might be morally (and theologically) permissible to remove the LST before death. But there remains a question of timing, and this is where the selectivity may come in.

15 A typical scenario with an incompetent patient might run as follows: a multi-disciplinary team, led by a consultant, makes a decision to withdraw LST from a patient in a PVS, with the approval of the patient's family. A nurse on the team declares a CO and recuses himself, believing the withdrawal decision to be premature. A nurse's CO is governed by paragraph 4.4. of The Code of the Nursing and Midwifery Council. See: https://www.nmc.org.uk/globalassets/sitedocuments/nmc-publications/nmc-code.pdf [accessed June 2019].

16 ‘An adult patient who, like Miss T, suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered […] This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’ (Re T (adult: refusal of treatment) 1992).

17 I’m thinking of the character of Ken Harrison in the 1972 television play by Brian Clark, Whose Life is it Anyway? Harrison was a tetraplegic who could breathe unaided, and was asking to be allowed to refuse food and water, without being resuscitated once he fell into unconsciousness, in order to die.

18 Consider the classic counter-example from the euthanasia debate: the lovesick 19-year-old. He is a competent adult, and unlike Ms B he genuinely wants to die. He needs some kind of LST to survive, and asks the doctor to withdraw it. Here we can imagine a strong moral case for ignoring the patient's request, even though the continuing treatment would technically constitute a battery. Perhaps it could be argued that the lovesick teenager is not sufficiently free (his will is undermined by lovesickness) or informed (we know the world will get better soon, but he does not), and therefore his request can be ignored.

19 The classic case here is Airedale NHS Trust v Bland (1993). Tony Bland had been in a persistent vegetative state. Throughout the judgement we hear opinions that it would be in the patient's best interests to withdraw artificial nutrition and hydration and to let him die. In normal contexts, we can describe option A as being of greater benefit to me than option B if I live on to enjoy the benefit of A. But if the putatively beneficial option A involves my earlier death in order to avoid further unbearable suffering, then although my death will remove the suffering, it does so only by removing the sufferer. This is a relatively narrow point against the language of benefit and best interests; it is not an argument against the Bland decision, which might be justifiable in other ways.