Category: Legal Commentary

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.

Conscientious Objection: A Quick(ish) Answer

Journal of Medical Ethics

Mary Neal

The Conscientious Objection (Medical Activities) [HL] Bill, introduced by the crossbench peer Baroness O’Loan, received its second reading in the House of Lords on Friday 26th January and successfully proceeded to the committee stage.  In a post on this blog the following day, Iain posed a very reasonable question about clause 1(1)(a) of the Bill.  That clause would allow health professionals to refuse to be involved in “the withdrawal of life-sustaining treatment”, and Iain asks how this can be compatible with existing 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.

Before responding, I should declare an interest: I’m a spokesperson for the Free Conscience campaign, which supports the Bill.  I endorse the Bill’s premise that healthcare professionals should, in key areas of practice, benefit from statutory conscience rights that are both meaningful and effective. . . [Full Text]

Medically assisted dying: What happens when religious and individual rights conflict?

Lawyer Allison Fenske explains how Canadian law works, and how the courts strive to balance competing rights

CBC News

A Winnipeg man’s struggle to be assessed for a medically assisted death while he lives at a faith-based hospital has some questioning how we balance personal and religious rights in Canada.

“I want to die and nobody should come in the way of my deciding how to go about it,” Cheppudira Gopalkrishna, 88, said on Saturday.

However, because Gopalkrishna lives at a faith-based hospital that objects to medical assistance in dying, he has struggled to be assessed by Manitoba’s MAID team under provincial guidelines regulating such deaths. . . [Full text]

 

Contraceptive Coverage and the Balance Between Conscience and Access

Ronit Y. Stahl,PhD; Holly Fernandez Lynch, JD, MBE

When the Obama administration included contraception in the essential benefits package to be covered by employer-sponsored health insurance plans under the Affordable Care Act, it sought to preserve access for women while addressing the concerns of employers with religious objections. Although the accommodations and exemptions were not enough for some employers, balance was the ultimate goal. This also was reflected in Zubik v Burwell, the Supreme Court’s most recent decision on the matter; on May 16, 2016, the justices remanded the litigants to the lower court so they could be afforded the opportunity to reach a compromise between religious exercise and seamless contraceptive coverage. No further compromise was forthcoming.

Now the Trump administration has rejected balance as a worthwhile goal.1 Its new contraceptive coverage rules, released on October 6, 2017, prioritize conscientious objection over access.2,3 The rules take effect immediately, and new legal challenges, this time on behalf of patients rather than objecting employers, have already begun.4 The new rules preserve the default requirement that employers must include free access to contraceptives as part of their insurance plans. However, the rules now exempt employers with religious or moral objections to contraceptives, without requiring any alternative approaches to ensure that beneficiaries can obtain contraceptives at no cost.2,3
[Full Text]

Stahl RY, Lynch HF. Contraceptive Coverage and the Balance Between Conscience and Access. JAMA. Published online October 19, 2017. doi:10.1001/jama.2017.17086

Victoria, Australia: Voluntary Assisted Dying Bill 2017

Comment

Sean Murphy*

A  euthanasia and assisted suicide bill introduced in the Parliament of Victoria, Australia, includes several provisions that pertain to legal protection of freedom of conscience.  Concerning these:

  • Freedom of conscience provisions concern only individual practitioners, not health care facilities.  Freedom of conscience presumably includes acting upon moral or ethical beliefs grounded in religious teaching.
  • Statements of principles that require encouragement and promotion of an individual “preferences and values,” that people should be “supported” in conversations about treatment and care and “shown respect” for their beliefs, etc. can be interpreted to require affirmation of moral or ethical choices.
    • While the principles may have no direct legal effect, they could be cited by professional regulatory authorities against those who refuse to encourage, promote, or affirm the acceptability of euthanasia and assisted suicide.
  • Registered medical practitioner is not defined, but all would be encompassed by the definition of health care practitioner.
  • All health care practitioners are protected by Section 7.
  • Section 7(b) allows for refusal to participate in the request and assessment process and Section 7(c) protects refusal to be present when lethal medication is administered, but Section 7
    • does not include protection for refusal to participate in the administration of lethal medication, by, for example, inserting an IV line in advance, or by other means
    • does not include protection for refusal to participate in dispensing lethal medication
  • “Participate” in Section 7(b) is broad enough to encompass referral.  However, the bill would be improved by providing protection against coerced indirect participation in administering or dispensing lethal medication.
  • The bill does not require falsification of death certificates, but does require the falsification of the cause of death in the registration of deaths.  The bill includes no protection for a registrar who, for reasons of conscience, is unwilling to falsify a registry entry.