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Protection of Conscience Project

Service, not Servitude
Legal Commentary

House of Lords Select Committee

On Assisted Dying for the Terminally Ill Bill

Selections from the First Report:

  • Clause 7

  • Conscientious Objection

  • Responsibilities of Physicians

  • Human Rights

In 1993/1994 the British parliamentary Select Committee on Medical Ethics reviewed the law on euthanasia and concluded that the procedure should not be legalized. In 2003 Lord Joffe introduced a private member's bill into Parliament, the Patient (Assisted Dying) Bill, which progressed only to second reading. In March of the following year he introduced the another private member's bill (Assisted Dying for the Terminally Ill), drafted "to enable a competent adult who is suffering unbearably as a result of a terminal illness to receive medical assistance to die at his own considered and persistent request; and to make provision for a person suffering from a terminal illness to receive pain relief medication." It received Second Reading and was referred to a House of Lords committee for detailed examination.

The bill included an exemption for conscientious objectors (Clause 7) which was criticized by some submissions because it suggested that there could be conscientious objection to pain relief per se. It also required an objecting physician refer a patient to a colleague willing to process a euthanasia request. This elicited protests during the examination of witnesses and in written evidence and an adverse judgement from the Joint Committee on Human Rights, as a result of which Lord Joffe agreed to remove the provision for mandatory referral.

Conscientious Objection:  Reflecting on practical issues, the Committee cautioned that the bill might prove unworkable because many health care workers would refuse to participate in the procedure. In its conclusions, the Committee supported the deletion of the mandatory referral on the grounds that forcing physicians to refer for a procedure to which they objected for reasons of conscience is probably contrary to the European Convention on Human Rights. The Committee also recommended the expansion of protection of conscience provisions to include other health care workers, and that the exemptions also take into account the multidisciplinary nature of the care given to the terminally ill.

The conclusions of the Joint Committee on Human Rights and the Select Committee with respect to referral are most welcome and deserve notice from persons in positions of influence or authority who continue to try to force objecting health care workers to refer for morally controversial procedures. [Administrator]

Clause 7: Duties of physicians, and conscientious objection

(1) No person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any diagnosis, treatment or other action authorised by this Act to which he has a conscientious objection.

(2) If an attending physician whose patient makes a request to be assisted to die in accordance with this Act or to receive pain relief under section 15 has a conscientious objection as provided in subsection (1), he shall take appropriate steps to ensure that the patient is referred without delay to an attending physician who does not have such a conscientious objection.

(3) If a consulting physician to whom a patient has been referred in accordance with section 2(2)(g) has a conscientious objection as provided in subsection (1), he shall take appropriate steps to ensure that the patient is referred without delay to a consulting physician who does not have such a conscientious objection.

From Chapter 4: Practical Issues
Conscientious Objection

113. The Bill provides exemption for persons with conscientious objections to taking any of the actions which it authorises, and we address the detail of this "conscience clause" in Chapter Seven. It has been suggested to us, however, that the Bill, if it were to become law, might well be unworkable because of the conscientious objections of many of those who would be called upon to put it into practice.

114. Dr Ivan Cox, for the Royal College of General Practitioners, warned of GPs opting out (Q 224). The Royal College of Nursing said that "the proposals in the Bill will be unacceptable to many nurses on moral, ethical or religious grounds"[41]. Speaking for the RCN, Maura Buchanan drew attention to the high proportion of nurses from overseas within the NHS, many of them with religious objections to what the Bill proposes: she predicted a haemorrhage of trained nurses if the Bill were to become law. We did not, it has to be said, receive indications from the authorities in other countries where legislation of this nature has been enacted that significant problems had been encountered in regard to conscientious objection by large numbers of doctors and nurses, though it is perhaps necessary to bear in mind that the composition of the medical and nursing professions in this country is rather different from that in, for example, Holland, where over 90% of doctors are of Dutch origin[42].

115. Asked whether the operation of the 1967 Abortion Act did not provide a precedent, our witnesses drew attention to certain differences. Professor John Saunders, for the Royal College of Physicians, believed that abortion and euthanasia were perceived differently by doctors. "The one thing we can all agree on is that, if I give barbiturates or curare to a competent adult, I am killing that person… I do not think anyone can contest that that is killing someone" (Q 246), whereas there was some room for doubt, he suggested, over terminating the life of a foetus. Ms Buchanan drew attention also to a practical consideration affecting the nursing profession. "You can choose not to work in a gynaecological unit, but people die everywhere in health care. So how will you take the nurses and look after them in a nursing home where the local GP comes in to practise euthanasia?" (Q 263)

116. We were also given the results of a survey carried out by the Association of Palliative Medicine (APM). We were told that in the APM survey of its members, which attracted an 84% response rate, 72% percent of respondents had said that they would not be prepared to participate in a process of patient assessment which formed part of an application for assisted suicide or voluntary euthanasia. [Original Text]
From Chapter 7: Conclusions
Responsibilities of Physicians

261. We have already addressed (Paragraphs 247 to 248) the important need for explicit wording in any future bill to define precisely the actions which a doctor may or may not take after a patient has signed a declaration and requested assisted suicide or euthanasia. But it is necessary also to consider the position of doctors who have conscientious objections to assisted suicide or voluntary euthanasia. Clause 7 of the present Bill seeks to deal with this issue, providing as it does that "no person shall be under any duty… to participate in any diagnosis, treatment or other action… to which he has a conscientious objection" (Clause 7(1)) and that, if either an attending or consulting physician has such an objection when confronted with a patient who is seeking his services under the Bill, "he shall take appropriate steps to ensure that the patient is referred without delay" to an attending or consulting physician "who does not have such a conscientious objection" (Clause 7(2)(3)). We have already pointed out (Paragraph 32) that, in the light of concerns expressed by the Joint Committee on Human Rights[80] that Clauses 7(1) and 7(2) "give rise to a significant risk of violation of Article 9(1) of the ECHR", Lord Joffehas proposed to amend this section of his Bill in such a way as to remove the obligation on physicians with a conscientious objection to refer patients in the way proposed. We recommend that such an amendment should be reflected in any successor bill.

262. Conscientious objections could however arise not only from doctors but also from other health care professionals, including nurses and pharmacists. The present Bill however is rather narrowly drawn on this point. We suggest therefore that any new bill should reflect, in addition to the revision of Clause 7 which Lord Joffe has proposed for his own Bill, the need to protect the interests of all members of the clinical team. In particular, it should seek to address such situations as that in which, for example, a nurse with conscientious objections is asked by a patient to raise with a doctor on his or her behalf a request for assisted suicide or voluntary euthanasia.

263. It has also been drawn to our attention that care of the terminally ill is often carried out by multidisciplinary teams and that a number of doctors, nurses and other health care professionals could be involved, and might feel themselves implicated, in any action taken under the terms of the Bill to respond to a request for assisted suicide or euthanasia. Dr Vivienne Nathanson, for the BMA, told us that in many cases, such as, for example, in spinal injury cases, "you are not talking about one doctor, you are talking about teams of doctors, and I think there would be great difficulty in deciding who was, if you like, the primary care doctor and decision-maker, because the nature of these teams is that they work as equals" (Q 299). The GMC told us that its own guidance indicates that it should be clear at any one time who has responsibility for patient care (Q 339). It added that, while in theory this issue did not present insurmountable obstacles, the practical implications could be more complex (Q 340). Any new bill would therefore need to be drafted in such a way as to cater satisfactorily for such situations-for example, if the doctor with primary responsibility for a terminally ill patient wished to respond to a request for assisted suicide or voluntary euthanasia, where would that leave other members of the team who had conscientious objections?[Original Text]

United Kingdom Parliament

Joint Committee On Human Rights Twelfth Report (Extract)

Assisted Dying for the Terminally Ill Bill
Conscientious Objection

3.11 There is, however, one minor respect in which the Bill does give rise to a risk of violation of a Convention right.

3.12 Clause 7(1) of the Bill properly gives effect to the obligation on the UK under Article 9(1) ECHR to respect the individual's right to freedom of thought, conscience and religion. It achieves this by providing that no person shall be under any duty to participate in any diagnosis, treatment or other action authorised by the Bill to which that person has a conscientious objection.

3.13 There is a tension, however, between this protection for freedom of conscience in clause 7(1) and the provision made in clauses 7(2) and (3), which impose a duty on physicians who invoke their right to conscientiously object, to "take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection".

3.14 We consider that imposing such a duty on a physician who invokes the right to conscientiously object is an interference with that physician's right to freedom of conscience under the first sentence of Article 9(1), because it requires the physician to participate in a process to which he or she has a conscientious objection. That right is absolute: interferences with it are not capable of justification under Article 9(2).

3.15 We consider that this problem with the Bill could be remedied, for example by recasting it in terms of a right vested in the patient to have access to a physician who does not have a conscientious objection, or an obligation on the relevant public authority to make such a physician available. What must be avoided, in our view, is the imposition of any duty on an individual physician with a conscientious objection, requiring him or her to facilitate the actions contemplated by the Act to which they have such an objection.

3.16 In the absence of such a provision, however, we draw to the attention of each House the fact that clauses 7(2) and (3) give rise in our view to a significant risk of a violation of Article 9(1) ECHR. [Original Text] [Twelfth Report]


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House of Lords Committee on "Assisted Dying" Bill