Nazis, Teleology, and the Freedom of Conscience: In Response to Gamble and Pruski’s ‘Medical Acts and Conscientious Objection: What Can a Physician be Compelled to Do?’

Abstract

Medical practitioners of all specialisms (e.g. RN, MD) are identified by their professional titles. Their function is determined by their regulators, and subject to voluntary employment contracts. Whilst they are expected to act in their patients' best interests, there are situations in which a physician – having human rights – can object to certain acts. This right of objetction arises from the recognition of the practitioner’s own conscience rather than the end or purpose of the procedure being performed. Gamble and Pruski explore an act-centred morality, and therefore define acts as medical (and subject to compulsion) and non-medical (therefore voluntary). This analysis has merit when applied to health-systems as a whole, but fails to take into account the humanity of physicians and the specific interactions with patients in different contexts. As such, it serves as a way of compelling physicians to act against their conscience rather than protecting them.

KEYWORDS:

• Conscientious objection
• philosophy of medicine
• medical act
• health care professionals
• professional practice
• professionalism
• law of warfare

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Marcus Wischik http://orcid.org/0000-0002-5435-2031

Notes on contributor

Marcus Wischik is a solicitor in private practice in biotech, with a background in international law.

Correspondence to: Independent Researcher. Email: [email protected].

Notes

1 Lord Mustill at 266 ‘Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet surgeons incur no liability’.

2 The manner in which this is stated will vary from one military to another. See, for example, Uniform Code of Military Justice of the United States of America, Art 29, which arises out of the United States Constitution, art 1(8). URL: https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47 [Accessed 24 September 2019].

3 For example, World Medical Association Declaration of Helsinki 1964 URL: https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/ [Accessed 16 September 2019] or International Council for Harmonisation of Technical Requirements for Pharmaceutical Use (ICH) Guideline for Good Clinical Practice E6 (R2) URL: https://www.ich.org/fileadmin/Public_Web_Site/ICH_Products/Guidelines/Efficacy/E6/E6_R2__Step_4_2016_1109.pdf [Accessed 16 September 2019].

4 For example, in the UK context, Qualifications we Accept, GMC URL: https://www.gmc-uk.org/registration-and-licensing/join-the-register/before-you-apply/acceptable-overseas-qualifications/overseas-medical-qualifications-we-may-accept [Accessed 29 September 2019].

5 See, for example, Royal Dutch Medical Association guidance on euthanasia (Dutch): URL: https://www.knmg.nl/advies-richtlijnen/dossiers/euthanasie.htm Accessed 16 September 2019 versus Australian Medical Association position on euthanasia: URL: https://ama.com.au/system/tdf/documents/AMA%20Position%20Statement%20on%20Euthanasia%20and%20Physician%20Assisted%20Suicide%202016.pdf?file=1&type=node&id=45402 [Accessed 16 September 2019].

6 First published in 1977 and now onto the 21st edition, this evolution neatly demonstrates the changeable nature of medical practice. World Health Organisation Essential Medicines and Health Products URL: https://www.who.int/medicines/publications/essentialmedicines/en/ [Accessed 16 September 2019].

7 Art 2(d), Convention on the Prevention of the Crime of Genocide (1948): Imposing measures intended to prevent births within the group.

8 Nuremberg Principle IV: ‘The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him’.

9 It is difficult to draw clear distinctions from Nuremberg and Tokyo; those individuals that had particular skills of interest to the wartime Allies were acquitted, pardoned, or granted immunity provided that they use their skills for their new patrons, such as Wernher von Braun or Kurt Blome.

10 A non-exhaustive survey of Good Medical Practice guidance: New Zealand, 19–21 URL: https://www.mcnz.org.nz/assets/standards/85fa1bd706/Good-Medical-Practice.pdf [Accessed 16 September 2019] Australia, 1.4 8.2 URL: https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx [Accessed 16 September 2019].

11 See, for example, International Covenant on Civil and Political Rights, Article 18: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’

12 The right of a baker to opt out of providing a ‘gay cake’ has been extensively discussed in British media: BBC News ‘Gay Cake’ row in Northern Ireland: Q&A 10 October 2018 URL: https://www.bbc.co.uk/news/uk-northern-ireland-32065233 [Accessed 16 September 2019].