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Abstract
This paper argues that healthcare aims at the good of health, that this pursuit of the good necessitates conscience, and that conscience is required in every practical judgement, including clinical judgment. Conscientious objection in healthcare is usually restricted to a handful of controversial ends (e.g. abortion, euthanasia, contraception), yet the necessity of conscience in all clinical judgements implies the possibility of conscientious objection to means. The distinction between conscientious objection to means and ends is explored and its implications considered. Based on this, it is suggested that conscientious objection, whether to means or ends, occurs when a proposed course of action comes into irreconcilable conflict with the moral principle ‘do no harm’. It is, therefore, concluded that conscientious objection in healthcare can be conceived as a requirement of the moral imperative to do no harm, the right to refuse to harm in regard to health.
Notes on contributor
Toni C. Saad is a foundation year 2 doctor based in Cardiff. He is editor of book reviews for The New Bioethics.
Notes
1 Examples of this hostility include the argument that ‘to invoke conscientious objection is to deny the fundamental obligation of healthcare’ and that conscience protections should be radically limited because objectors are not conscripts (Stahl and Emmanuel Citation2017, pp. 1383–1384), and it has also been claimed that ‘medical professionals have no moral claim in liberal democratic societies to the accommodation of their individual conscientious objections’ (Schuklenk and Smalling Citation2017, p. 240). Julian Savulescu infamously stated that
a doctors’ [sic] conscience has little place in the delivery of modern medical care … If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors. (Savulescu Citation2006, p. 297)
2 Aristotle’s dictum at the opening of his Nichomachean Ethics sums up this idea well:
Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim … Now, as there are many actions, arts, and sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a vessel, that of strategy victory, that of economics wealth. (Nic Eth I.1)
3 This is not stated as a policy suggestion but as a statement of reasonableness. If it is granted that CO to what can reasonably be perceived as killing is reasonable, and that it should, therefore, be protected in law, it seems to follow that, if it is reasonable to conscientiously object to what is harmful, then it this sort of CO should also be protected in law. This paper does not make the case for legal protection explicitly, however, and seeks only to show the reasonableness of conscientious objecting to what can be reasonably conceived of as harm.
4 The key word here is ‘intentionally’. Patients are frequently harmed by medical interventions (e.g. side-effects, complications), but this harm is – let us hope, at least – not deliberate harm. It might be foreseen or unforeseen, but it is certainly not intended.
5 Despite this recognition of CO in the law, it has been argued that ‘In the UK, freedom of conscience needs a microscope to be visible, at least when it comes to health care’ (Oderberg Citation201Citation9, p. 10). The scope of this paper, however, excludes a discussion of the subject of the protection of conscience in law.
6 Similarly, when it comes to procedures requested for primarily religious or cultural reasons, the GMC’s guidance states: ‘If you do not believe that the procedure is of overall benefit to an adult patient, you must explain this to them. You are not obliged to provide treatments in such cases’, (General Medical Council Citation2013).
7 See Myskja and Magelssen (Citation2018, pp. 82–87) for how this can be done.
8 This aphorism has ancient roots but is often attributed to Thomas Aquinas.
9 As Aristotle put it, ‘the task of medicine is not to ensure that any old good should be where it belongs, but that health should be’, Eudemian Ethics I.8.
10 See McAndrew (Citation2019) for a discussion of some procedures performed my doctors which do not treat pathology. Examples he gives include abortion, contraception and euthanasia.
11 This phrase comes from Schuklenk and Smalling (Citation2017).
12 This somewhat technical definition of conscience and its relation to practical reason is associated with the Aristotelian-Thomistic tradition.
13 One cannot conscientiously object to running over pedestrians with a car because no one places upon us an expectation to do so.
14 Of course, it is accepted that competent patients have a legal right to refuse any treatment offered to them; this is not in question (see Re B). The relevant case here is that of a patient making a positive request for a treatment which is not harmful or reckless, but which might be considered ‘second-best’ or suboptimal. The doctor facilitating this request is not concerned about directly harming the patient, though he might believe he has not done as much good as he could have.
15 Nevertheless, it seems that these two ethical principles are, at the very least, philosophically defensible, have been historically defended with sophistication, and variously sanctioned according to philosophical fashion (see Jones Citation2018a, Citation2018b, Feser Citation2015, pp. 378–415). To argue that they are a priori unreasonable, and therefore invalid reasons to conscientiously object, would be an ambitious task. Regarding female genital mutilation, it may be that some practices denoted by this phrase do not entail mutilation in the strict sense of harming a natural function of the body, while on our account such a practice would still be considered harmful and, therefore, susceptible to conscientious objection, although performing it would not violate the specific principle against mutilation. About male circumcision and the question of mutilation see, for example, Jones (Citation2018).
16 This case not only involves a refusal to harm the patient but also a third party: the inappropriate use of antibiotics has ramifications for other members of society who may contract bacterial illnesses which are resistant to antibiotic therapy.
17 Someone may object to this example for reason that it involves a factual error on the patient’s part, because antibiotics are not effective against the common cold. Therefore, this is not a case of a difference of ethics but a difference of facts, or a question of belief. The problem with this objection is that patients sometimes request things which, while not in the same category of inappropriateness as antibiotics for colds, are still inappropriate. High-risk surgery is an example of this. A patient might have a problem which is ‘fixable’ by the surgery they demand, and so they are not factually mistaken about their request. However, the surgeon, in view of the risk or the burden of the surgery, may genuinely believe that it is not in a patient’s best interests to undergo the surgery. Though patients have a right to a second opinion, there is no obligation upon the surgeon to perform this surgery under such circumstances.
18 Decisions to not admit to intensive care are not usually contested. However, the well-known case of David James illustrates that the courts are sometimes called upon to resolve disputes concerning ceilings of care (Aintree University Hospital NHS Foundation Trust v David James and Ors). The medical team looking after David James on the intensive care unit sought an order from the Court of Protection to the effect that they would not be held liable for withholding cardiopulmonary resuscitation, renal replacement therapy and invasive haemodynamic support, as they did not think these things to be in his best interests. The request was rejected in early December 2012, but then later granted after James’ condition deteriorated (see Szawarski Citation2016).
19 Something similar could be said for opiates.
20 One could perhaps concede that CO to ends and means should be treated similarly. Then, might one not just as well forbid as allow both if they are substantially similar? Quite simply, this is an invalid conclusion to draw from the premises. If healthcare aims at doing good and doing good requires conscience, the conclusion that conscience should not be permitted either in regard to ends or means cannot stand. To maintain this conclusion, it seems that one must also adopt the position that healthcare really is reducible to preference satisfaction. This position at least has the advantage of being valid, though it remains to be seen whether it is sound.