Category: Law

Conscientious objection and withdrawal of life support

BioEdge

Xavier Symons

Are British doctors obliged to withdraw life support if requested by a patient?

This question was raised by Iain Brassington of the University of Manchester, in response to the introduction of the Conscientious Objection (Medical Activities) Bill in the British parliament.

The bill would protect health care professionals who conscientiously object to a range of controversial medical procedures.

Brassington suggested that certain clauses of the proposed legislation may conflict with extant civil and criminal law, under which it is unlawful to fail to withdraw treatment (including life-sustaining treatment) from a competent patient who no longer consents to it, or from a patient who lacks capacity if treatment is no longer in her best interests.

Yet in a response post to Brassington, University of Strathclyde law lecturer Mary Neal said that there was no tension between the proposed bill and existing law.

First, Neal observed that existing GMC guidance permits a conscientious objection to withdrawal of life-sustaining treatment. Paragraph 79 of the GMC’s guidance Treatment and care towards the end of life: good practice in decision making (2014) states that doctors can object to withdrawing treatment if their “religious, moral or other personal beliefs” lead them to do so.

“Doctors, at least, are already subject to guidance that tells them they can opt out of involvement in the withdrawal of life-sustaining treatment”, Neal writes.

Second, Neal observes that extant case law requiring the withdrawal of treatment of consenting patients applies to Trusts rather than to individual doctors:

When a competent patient indicates that she no longer consents to life-sustaining treatment […]continued treatment is unlawful…But this obligation belongs to the Trust…If an individual professional notifies her employer that she has a belief that forbids her from performing the act of withdrawal (switching off a life support machine, or disconnecting a feeding tube, for example), it is incumbent upon those with management responsibility to assign the task to someone else who has no such objection.

The Conscientious Objection (Medical Activities) Bill has progressed passed a second reading in the House of Lords, and will now go before a committee.

Conscientious objection and withdrawal of life supportThis article is published by Xavier Symons and BioEdge under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to BioEdge. Commercial media must contact BioEdge for permission and fees.

Canadian court tells doctors they must refer for euthanasia

Will they be hounded out of their profession?

Mercatornet

Michael Cook

For years bioethicists of a utilitarian cast have argued that conscientious objection has no place in medicine. Now Canadian courts are beginning to put their stamp of approval on the extinction of doctors’ right to refuse to kill their patients.

The Superior Court of Justice Division Court of Ontario ruled this week that if doctors are unwilling to perform legal actions, they should find another job.

A group of five doctors and three professional organizations were contesting a policy issued by Ontario’s medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), arguing it infringed their right to freedom of religion and conscience under Canada’s Charter of Rights and Freedoms.

However, Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel:

“the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.

“Those who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.”

At issue is the policy of “effective referral”. A doctor who objects to participating in euthanasia cannot be forced to do it. But he is expected to pass the patient to another doctor who will. The CPSO argues that effective referral is necessary “to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.”

Without the policy of effective referral, equitable access would be “compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services,” Justice Herman Wilton-Siegel wrote. People in remote communities might request euthanasia. If their doctor refused, they might suffer needlessly and taxpayers would have to foot the bill to subsidise the refusnik’s conscience.

It is remarkable how closely Justice Wilton-Siegel’s text hews to the arguments of bioethicists who have been chipping away at the right to conscientious objection for years.

In 2005 American legal scholar Alta Charo described conscientious objection as “an unfettered  right to personal autonomy while holding monopolistic control over a public good … an abuse of the public trust—all  the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest’.

In 2006 Oxford’s Julian Savulescu argued in the BMJ that “when conscientious objection compromises the quality, efficiency, or equitable delivery of a service, it should not be tolerated”.

More recently, Canadian bioethicist Udo Schuklenk and a colleague contended in the BMJ that

“If at any given time a doctor is unable to continue practicing due to their—ultimately arbitrary—conscience views, nothing would stop them from leaving the profession and taking up a different vocation. This happens across industries and professions very frequently. Professionals can be expected to take responsibility for the voluntary choices they make.”

Responding to the ruling, Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said: “We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.”

The case is sure to be appealed, but if the doctors championing conscientious objection fail, the consequences will be dire.

Throughout Canada, doctors would be required to refer for euthanasia. If they refuse, they will be hounded out of their profession, or, at best, shunted into specialties where the question will not arise, like pathology or dermatology.

This ruling shows how quickly tolerance vanishes after euthanasia has been legalised. In the Carter decision which legalised it, Canada’s Supreme Court explicitly stated that legalizing euthanasia did not entail a duty on the part of physicians to provide it. Now, however, 18 months and more than a thousand death after legalisation, conscientious objection is at risk.

It also shows how vulnerable religious-based arguments can be. The plaintiffs contended that referring patients violated their right to religious freedom. While this is true, is this the main ground for conscientious objection? As several doctors pointed out in the Canadian Medical Association Journal last year, “Insofar as all refusals of therapy are ultimately justified by the ethical belief that the goal of therapy is to provide benefit and avoid harm, all treatment refusals are matters of conscience.”

This article is published by Michael Cook and MercatorNet under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to MercatorNet. Commercial media must contact MercatorNet for permission and fees.

Church calls for Scottish Bill to back medics’ conscience rights

Scottish Catholic Observer

Amanda Connelly

The Catholic Church in Scotland has called for a bill that gives medical professionals the right to conscientiously object to medical procedures such as abortion.

The comments come after Baroness O’Loan’s new Conscientious Objection (Medical Activities) Bill for England and Wales, which looks to ensure conscience rights for medical professionals, had a second hearing in the House of Lords on Friday January 26.

“While the bill only applies to England and Wales, its progress should be of interest to people in Scotland, where hopefully a similar bill could be presented to the Scottish Parliament,” director of the Catholic Parliamentary Office Anthony Horan said. . . . [Full text]

 

The War on the Hippocratic Oath

First Things

Wesley J. Smith

The screaming was so loud, you would have thought that the Trump administration had overturned Roe v. Wade. It hadn’t, of course. But it had directed needed attention at the existing legal protection that allows doctors and nurses to refuse to participate in abortions without fear of firing or other job sanctions. This protection is sometimes called “medical conscience rights.”

The occasion for the uproar? The Department of Health and Human Services announced its intention to create a new office of Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) to enforce medical conscience. It is worth noting that this proposed action will not change the law. But it will revitalize enforcement efforts after years of the Obama administration’s hostility toward religious liberty generally and medical conscience rights specifically. Indeed, the newly created enforcement office will put medical employers on notice that the current administration considers medical conscience rights to be fundamental. As the HHS press release put it:

The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.

In a country with a long and venerable history of honoring conscientious objection and protecting the free exercise of religion, one would think this step would be met by applause. But for some, it was akin to a declaration of social war. The Massachusetts Medical Society sniffed in opposition:

As physicians, we have an obligation to ensure patients are treated with dignity while accessing and receiving the best possible care to meet their clinical needs. We will not and cannot, in good conscience, compromise our responsibility to heal the sick based upon a patient’s racial identification, national or ethnic origin, sexual orientation, gender identity, religious affiliation, disability, immigration status, or economic status.

The New York Times was equally condemning. In an editorial titled, “The White House Puts the Bible Before the Hippocratic Oath,” the editorialists warned hyperbolically:

The decisions may make it more difficult for teenagers wanting to get tested for sexually transmitted diseases, for gay men looking to prevent HIV and even for women seeking breast exams or pap smears.

Please. No one who supports a robust protection of medical conscience advocates compromising the physician’s responsibility to “heal the sick.” No one wants to prevent women from obtaining cancer screenings. Nor do supporters of medical conscience seek to authorize doctors and nurses to discriminate against individuals.

Rather, medical conscience prevents doctors and nurses from being forced to act in opposition either to their religious beliefs – e.g., commit a grievous sin – or to their moral consciences by being forced to participate in morally objectionable procedures, such as taking innocent human life in abortion, assisted suicide, or lethal injection euthanasia. It could also protect medical professionals from being required to administer hormones to inhibit puberty in adolescents experiencing gender dysphoria – a controversial recent innovation that the American College of Pediatricians has called “mass experimentation.” That opinion is becoming heterodox in the field, but surely no doctor should be forced in an elective procedure to act in a way that he believes actively harms the patient. The same goes for physicians who object to participating in sex-change surgeries based on the belief that sex is biologically determined or that it is wrong to remove healthy organs. Conscious protections should also apply to a doctor or nurse who objects to participating in infant circumcision based on a moral objection. And surely no doctor should be forced to participate in an execution, not even the administrative act of declaring the condemned prisoner dead after the execution.

People of good will can hold radically divergent moral beliefs, including about legal medical services and procedures. The stakes in this controversy are very high. As I have written here before, there is a concerted effort underway to drive pro-life and Hippocratic Oath-believing doctors, nurses, and other professionals out of medicine – a lamentable potentiality. We need increased comity and tolerance for those medical professionals who object to reigning moral paradigms and hold to sanctity-of-life ethics. The new HHS office represents a positive step toward achieving that end.

Post Script: The best and most efficient way to protect medical conscience would be for the states and the federal government to allow medical conscience rights to be enforced via private causes of action in civil court, which is not currently allowed generally. I will discuss that idea in a future column.

 

Doctors Condemn Massachusetts Suicide Bill

Bill would force every doctor to participate in prescribing lethal medication

The Washington Free Beacon

Bill McMorris

Doctors in Massachusetts are speaking out against a proposal to approve physician-assisted suicide, arguing that its End of Life Options Act could force all doctors to participate in doling out lethal medication and pressure patients into suicide.

On Tuesday, Dr. Tom Sullivan, former president of the Massachusetts Medical Society, led more than 20 physicians into the statehouse to urge lawmakers to oppose a bill that would grant immunity to doctors who help terminal patients kill themselves. . .  the Massachusetts Medical Society (MMS) overturned its long-standing condemnation of the practice and voted to remain neutral on the legislation.  Sullivan and several other former MMS presidents spoke out against the neutral stance during debate. While they were unsuccessful in swaying the vote, they were able to insert language into the society’s stance, including conscience protections for any doctor who objected to the practice. The current bill includes no such protections . . . [Full text]