House of Lords Select Committee
On Assisted Dying for the Terminally Ill Bill
-
Clause 7
-
Conscientious Objection
-
Responsibilities of Physicians
-
Human Rights
Introduction
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]
(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.
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]
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
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]