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Protection of Conscience Project

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Service, not Servitude
Legal Commentary

When doctors say No

A law professor defends physicians' right to conscientious objection

MercatorNet
18 May, 2017

Reproduced under Creative Commons Licence

Michael Quinlan*

As abortion, euthanasia and other controversial procedures become more widespread, conscientious objection for healthcare workers is becoming a flashpoint for controversy throughout the Western world. Some doctors and ethicists have argued that conscientious objection itself is unethical because doctors are required to fulfil any legal request that their patients make.

MercatorNet interviewed Professor Michael Quinlan, dean of the law school at the Sydney campus of the University of Notre Dame Australia, about this contentious issue. He has just published an article on the situation in Australian jurisdictions.

MercatorNet: Opponents of conscientious objection complain that patients could suffer if doctors refuse to provide a service. But how about doctors? Do they suffer if they cannot live consistently with their consciences?

Michael Quinlan: Yes, they do and in a number of ways. Some doctors faced with provisions which prevent them from living consistently with their conscience will retire or move to a State which does respect conscience. Not all doctors will be in a financial position to take those steps, so some will comply with the law – after all generally speaking we expect citizens, and especially professionals, to comply with the law.

Just as there is growing evidence of what is called "moral distress" being experienced by ex-servicemen and women, so there is growing evidence that health practitioners who act against their conscience can suffer from "moral distress."

This is not just a bad feeling. Moral distress can adversely impact on self-respect, self-esteem, patient care and job satisfaction. Feelings of helplessness, frustration, guilt, sorrow and anxiety can manifest in physical and mental illness. Moral distress can cause burnout and early retirement from the profession. It can also lead to desensitising of one's conscience and to increased risk of doctors developing indifference to patients and a weakening of their ability make ethical decisions.

Most discussions of conscientious objection to abortion frame it as a moral judgement on the procedure. But isn't it also possible to see it as bad medicine – the wrong answer to a woman's distress?

There is certainly evidence that some women do suffer adversely from induced abortions. Symptoms can include depression, low self-esteem, self-destructive behaviours, relationship difficulties, substance abuse, suicidal ideation and anxiety. Such symptoms are not confined to women who undergo late term terminations and emerge after short or long periods of time have elapsed.

Reardon, Coleman and Short's study of medical evidence from half a million women in Denmark found significantly higher mortality rates within one to ten years of woman who have had early or late abortions. Women should be informed of these medical risks but they should also be given real alternatives to consider and those alternatives – material and medical – should be real.

Nobody likes "conscience clauses". Those who appeal to them resent being treated as an exception; those who oppose them think they are unfair. Do conscience clauses have a future or will they become narrower and narrower and fade away?

I don't know that it is true to say that nobody likes "conscience clauses." Conscience protections are actually not all that uncommon in Australia. Parliamentarians in the major political parties at least enjoy conscience votes in issues such as abortion. Federal law and the laws of most states and territories provide privilege from disclosure of confidential religious confessions. Conscientious objectors to military service are protected from conscription in the Commonwealth Defence Act.

The law protects those whose religious beliefs prevent them from voting at all or from voting in an election if it is held on a particular day of the week from fines for failing to vote. The Australian Cricket Board was able to accommodate the religious objections of a Muslim player to having to wear a uniform promoting alcohol. The Canterbury-Bankstown Rugby League club was willing (at least until recently) to accommodate the religious objections of one of its star players to playing football on a Sunday. Medical professionals of conscience need to be clear on their position and make their voices heard – in their professional organisations – but also in the public square.

Conscientious objection must have some limits. Can a Jehovah Witness doctor refuse to do blood tranfusions? Or a Muslim doctor refuse to examine women?

In a multi-faith, multi-racial and multi-cultural pluralist country like Australia I think that it is generally reasonable to accommodate positions held by medical professionals – and other citizens – as much as possible. Some issues may be able to be accommodated in some but not other circumstances.

Perhaps in a large public hospital with sufficient staff it might be possible for patients to be well cared for without requiring a doctor who has a conscientious objection to blood transfusions or to examining particular patients to be accommodated. Of course there do need to be some limits on conscientious objection. As Professor Iain Benson has observed "[a]ny legal regime is necessarily involved in line drawing and there is nothing inherently offensive about that."

Some have argued that if doctors object to performing legal procedures, they should find another job as a plumber or child care worker? How would you respond?

Those who make this argument tend to ignore the fact that we do live in a multi-faith, multi-racial and pluralist society. Just as there are some doctors who have a conscientious objection to abortion, so too are there patients who have such an objection. Patients have a right to obtain medical treatment from doctors who understand their religious worldview and who share that viewpoint.

Policies and legislative provisions that discourage "pro-life" doctors from joining or remaining in the profession may deprive patients from access to the services of health practitioners who share their views about the value of embryonic human life. Some patients would never countenance the termination of a pregnancy no matter the risks to their own physical health or no matter the physical or other challenges that their child might face. Such women who do not want to feel pressured into termination because their unborn child might be a Downs syndrome child or be pressured into a "selective reduction" if they are carrying twins.

Such patients want their doctors to support them in their decisions and to give them and their children whole hearted and supportive medical care. Provisions which force doctors out of the profession act to reduce – not to increase – patient choice.

What are the weak points in the armour of resolutely secular thinkers who argue that doctors should perform all legally requested procedures?

This sort of argument actually tends only to be made in relation to abortion services. Elective surgery is not normally something that doctors must do. So, for example, many paediatric doctors refuse to perform circumcisions on baby boys. Essentially these arguments seek to put patient autonomy as a governing principle and to assert that doctors owe obligations to society because society gives them something of a monopoly.

When you think about it, though, no one seems to argue that doctors must subjugate their own interests entirely to those of their patients. No one argues that doctors must carry out every legal operation a patient requests or that they must provide every legal medication that a patient requests.

We expect – we want – we need - doctors to be ethical people who are not driven solely by profit. We need doctors to refuse to carry out medical procedures which might earn them money but which they think would not be best for their patient's health and wellbeing. We don't expect and we don't actually want our doctors to give us antibiotics that we don't actually need. We want them to tell us what they think is actually in our best interests even though our Google inspired medical view conflicts with theirs.

We don't expect doctors to subordinate their interests to those of their patients generally. We don't expect them to work for free or to make house calls or never to take holidays at their patient's request. Those who want all doctors to provide abortion services must be honest in their arguments.  If they want to argue that all doctors must provide abortion services – but not other medical services – they must explain what exactly makes abortion different and overcome the powerful arguments against such compulsion.


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