Medical Law

CONSCIENTIOUS OBJECTION IN HEALTH CARE SERVICE DELIVERY 1: THE VIEWS, THE TRUTH?

Abstract:

The right of conscientious objection as exercised by the healthcare provider, affords him the opportunity to refuse the treatment of a patient on the basis of his religious or moral believes; this understanding of the law, however is without limitations and conditions necessary for its proper application.

In this article, we will be examining the right of conscientious objection; exploring the views of scholars regarding the exercise of this right, the exceptions and suggested test for the genuine exercise of the right.

Introduction:

A Healthcare provider may lawfully refuse to provide some medical services to his patients on the grounds of his beliefs, conscience or faith. When this happens, he is said to have conscientiously objected to treating his patient.

Talevera in examining the right of conscientious objection, simply captured it as a refusal to comply with a certain behaviour which could be legally demanded from an individual, due to conscience issues.[1] This means that health care professionals/providers may legitimately refuse to provide certain services contrary to their personal convictions.[2]

For the purpose of this work, we will adopt Kure’s view on the subject.He lucidly explained it to mean, the right of health care professionals to refuse to conduct specific procedures or to decline participation in such procedures they believe to be against their conscience or against their religious moral code, and therefore immoral.[3]

It is instructive to note that this is not circumscribed to refusal of a treatment as a direct activity of a health care professional, but also spans to levels of participation in such treatments like; providing information, counselling, examination, assistance, diverse level of participation in the treatment, referring to a colleague who does not object, etcetera,[4].

Wicclair, a renown Professor in Bioethics wittingly observed that for health care providers to be held to have conscientiously objected, they must have:

  1. refuse to provide legal and professionally accepted goods and services that fall within the scope of their professional competence, and
  1.  justify their refusal by claiming it was an act of conscience.

This right is in tandem with S.38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides for freedom of conscience, thought and religion[5].  Just like most rights create a level plain ground for people to thrive, the right of conscientious objection is aimed at protecting health practitioners and is in no way a license for the practitioners to impose their beliefs on a patient.[6]

The exercise of this right has undoubtedly triggered concerns, some of which are quite forward thinking.  It is unarguable, that this right creates some friction in the delivery of medical/health services, particularly when exercised arbitrarily.

Nigeria, although still at an infantile stage of medical law practice, has had a fair slice of the problem, having wide criticism from the legal, medical and socio-moral circles to deal with.

Schools of thought regarding the exercise of the right of Conscientious Objection:

In trying to create a balance between the right of the healthcare providers to conscientiously object and the patient’s right to access medical treatment, various schools of thoughts have emerged.

 For the purpose of this work, we will be focusing on just three; the conscious absolutism, incompatibility thesis and the specialties schools.

  • The Conscious Absolutism school of thought:  According to this school, a Physician should not be compelled to perform any medical treatment or medical procedure contrary to his religious, moral and cultural believes, including referring a patient to another physician[7].

It is believed that a  physician compelled to perform any medical operation contrary to his personal believes and morals, will lose his sense of integrity and it might culminate into adverse mental health effects.[8] They hold that the physician is usually faced with medical dilemma during their practice and that when these circumstances present themselves, their moral compass should be the basis of deciding what is most appropriate in the circumstance.[9] It is therefore not safe to hold that a physician should be deprived of practicing because he holds dearly certain principles and believes about certain treatments.

In addressing the challenges faced by practitioners of this school of thought, in terms of employment and creating the needed environment for the right to thrive, Louise Newman opined that:

The importance of having a diverse range of practitioners with different moral, ethical and religious beliefs should not be understated. Disallowing practitioners the opportunity to exercise a right to conscientiously object risks this diversity. This is likely to most affect those with religious beliefs. Excluding religious people from the medical profession, aside from being problematic from a human rights perspective, could be considered bad for patients, as a diverse and thriving medical profession is a desirable goal[10]

In spotting the shortcomings of this theory, the question, “what informs the conscience of the physician?” has been asked by scholars.That some believes held are contrary to human reasoning, good conscience and equity is no longer news, in the light of this, should there be allowed in the medical space, where the lives of patients are at stake?

 Also, the idea that the Physician should resort to his personal morals in taking decisions, is held by the opponents of this school as completely erroneous and misleading. They hold that the professional ethics of the medical profession is the compass in which the decisions of the physician are measured.[11]Doug McConnel in opposing this theory, explained that if conscientious objection is allowed, the following are going to be the likely outcomes. He stated thus:

The first kind is where the petitioner’s objection is based on empirical falsehoods. Imagine a physician conscientiously objects to giving children a vaccine on the grounds that the vaccine causes autism and he cannot expose children to that harm. The physician insists on his belief despite the only study suggesting the link being discredited and a large dataset suggesting that there is no link.

The second kind of case is of conscientious objections based on false moral beliefs. Imagine a physician who refuses to treat patients of other races because he sincerely believes that they do not deserve public health care[12]

  • The Incompatibility thesis school: This theory holds that Physicians who cannot administer legally acceptable medical services should not even consider the Medical profession.[13]The doctor is in a fiduciary relationship with the patient and should at every point in time, put the interest of the patient above his. They argue that a Physician’s belief should not prevent him from providing legally available treatments.[14] They believe that allowing conscientious objection to thrive in medical practice, is encouraging a backdoor for discrimination.[15]

Critics of this school hold that the idea of putting the interest of the patient far and above that of the physician, is not completely feasible. They explain that the physician cannot work round the clock, as he is entitled to vacations, breaks and holidays, etc, he cannot be expected at such circumstances to give up his holidays for the interest of the patient.[16]

  • Specialties school of thought: The specialties theory tries to create a balance in both the absolutism and incompatibility theories. They posit that:

“…if the disputed treatment forms an integral part of the particular specialty the objecting practitioner wishes to partake in, they should not become a member of that speciality[17]

What the above means is, a person who is not likely to get involved in a medically legal treatment or procedure, should not consider going into the branch or aspect of the profession to begin with. An instance would be, a medical student who wishes to venture into Gynecology and conscientiously objects to abortion, should not even consider venturing into it, in a country where it is legally acceptable, to avoid the conflicts and worries.

This theory is said to have its basis in the Scottish case of Doogan v NHS Greater Glasgow & Clyde Health Board[18] ,wherein the Outer House of the Scottish Court Session through Lady Smith reasoned inter alia, thus;

“nurses and midwives should give careful consideration when deciding whether or not to accept employment in an area that carries out treatment or procedures to which they object”, in response to a claim of statutory conscientious objection protection

EXCEPTIONS TO CONSCIENTIOUS OBJECTION:

  1. Emergency situations:The Health professional is under strict obligation to treat patients in emergency circumstances, the failure of which is punishable by law. The National Health Act provides in s.20(1) thus;

“A health care provider, health worker or health establishment is under a legal duty to provide emergency medical treatment. A person who contravenes this provision commits an offence and is liable on conviction to a fine of N100,000.00 or to imprisonment for a period not exceeding six months.”[19]

This exception will only fly when the healthcare provider is the only qualified person available. In cases where there are more than one qualified to handle the emergency, the objecting healthcare provider is not bound. However, he is also not enjoined to neglect the patient without putting other non-objecting healthcare providers timeously and, or taking steps to preserve the life of the patient.

  • Where the healthcare provider is the only one qualified within the jurisdiction, and the infirmity of the patient, may, if ignored, lead to serious complications or life-threatening cases, he may be held liable. This exception is different from a direct emergency situation.

Suggested test for the exercise of the right of conscientious objection:

  1. Whether in exercising the right of conscientious objection, the life of the patient is threatened?
  • Whether the physician observed reasonable steps within the medical practice in sustaining the patient pending his/her referral to another non-objecting health professional, where the treatment or procedure can be administered?
  • Is the said moral code, belief or conscience of the physician repugnant to good conscience, equity and, or, is the act of the healthcare provider contrary to the intended meaning of the said belief or moral code, he claims to act on?
  1. Whether in exercising the right of conscientious objection, the life of the patient is threatened (Emergency situations):

The life of the patient is sacrosanct in treatment and medical practice in general, it is on this bedrock the interest of the patient is captured in the Hippocratic oath and in the Rules of Professional Conduct of Medical and Dental Practitioners of Nigeria. In exercising this right therefore, recourse must be made to the life-threatening situation of the case. What steps did the physician take in saving the life of the patient or did he fold his hands and watch the patient die because administering such treatment would mean he went against his beliefs or conscience? If the latter is the case, no tribunal or court of law will offer, as appreciation for the physician’s steadfastness, warm praises for holding on to his beliefs or conscience.

  • Whether the physician observed reasonable measures within the medical practice in sustaining the patient pending his/her referral to another health professional, where the treatment or procedure is to be administered?

In every medical complication or situations, there are expected measures or steps expected by practice to be taken to help curb the problem(s). Can one’s beliefs go against them regardless, even when it has to do with the life of the patient? It is humbly submitted that where reasonable steps are not taken to address medical complications timeously on the basis of a physician’s conscience, such a physician.

  • Is the said moral code, belief or conscience of the physician repugnant to good conscience, equity and, or, is the act of the healthcare provider contrary to the intended meaning of the said belief or moral code, he claims to act on?

That a person bears a particular set of beliefs does not automatically clothe him with the protective cloak of the law, saving him from the cold hands of punishment if contrarily exercised. In exercising this right, the question must be answered in the negative.

RECOMMENDATIONS:

  • Objecting health care providers should upon their employment disclose areas of objection to their employers to enable them put necessary measures in place.
  •  The American and UK model of explaining reasons for objecting to certain treatments should be adopted to ensure that the right is not abused. always be given for the purpose of checks and scrutiny.

Conclusion:

The induction into the medical profession is not a valediction to one’s conscience, moral and religious believes. However, these believes should always be subjected to adequate scrutiny, at every given point in time, to check incidence of extremes and abuses. This does not in any way reduce or malign the Hippocratic Oath but rather strengthens its efficacy, as it is built on believes passed down from one generation to the next.

Endnotes:

  • Armand Antonmaria Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral and Emergency Treatment, (2011) 9 Ave Maria Law Review 81. At 84.
  • Constitution of the Federal Republic of Nigeria, 1999 (as amended)
  • Doogan v NHS Greater Glasgow & Clyde Health Board [2012] CSOH 32 at [15].
  • Doug McConnel, Conscientious Objection in Health Care: Pinning down the Reasonability View, Published by Oxford University Press on behalf of the Journal of Medicine and Philosophy Inc. Downloaded from <https://academic.oup.com/jmp/article/46/1/37/6054702> by guest, on 22 November, 2021.
  • Josef Kure, Conscientious objection in health care, Ethics & Bioethics (in Central Europe), 2016, 6 (3–4), 173–180 DOI:10.1515/ebce-2016-0018
  • Julian Savulescu, Conscientious Objection in Medicine, (2006) 332 British Medical Journal 294 at 295.
  • Louise Newman, The Compromise of Conscience: Conscientious Objection in Healthcare, LL.M Research paper, Faculty of Law, Victoria University of Wellington, published in 2013. Page 12.
  • Meyers, C., and R. D. Woods. 2007. Conscientious objection? Yes, but make sure it is genuine. The American Journal of Bioethics 7(6):19–20.
  • P. Talavera, Conscientious health objection in the prison environmentt, Rev Esp. Sanid Penit 2010; 12: 27-35
  • Mark Wicclair, Conscientious objection in Health care: An Ethical Analysis, Cambridge University Press, 2011. Accessed on <www.philipapers.org>

[1]P. Talavera, Conscientious health objection in the prison environment, Rev Esp. Sanid Penit 2010; 12: 27-35

[2]Inter-American Commission on Human Rights, Rep. on Access to Information on Reproductive Health from a Human Rights Perspective, (Nov.22,2011), OEA/Ser.L/V/II.doc.61, para.95, available at <http://www.cidh.oas.org/pdf%20files/womenaccessinformationreproductivehealth.pdf.>

[3]  Josef Kure, Conscientious objection in health care, Ethics & Bioethics (in Central Europe), 2016, 6 (3–4), 173–180 DOI:10.1515/ebce-2016-0018

[4] ibid

[5] Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[6] Mark Wicclair, Conscientious objection in Health care: An Ethical Analysis, Cambridge University Press, 2011. Accessed on www.philipapers.org, Armand Antonmaria Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral and Emergency Treatment, (2011) 9 Ave Maria Law Review 81. At 84.

[7] Ibid, Wicclair at 34

[8] ibid

[9] ibid

[10] Louise Newman, The Compromise of Conscience: Conscientious Objection in Healthcare, LL.M Research paper, Faculty of Law, Victoria University of Wellington, published in 2013. Page 12.

[11] ibid

[12] ibid

[13] ibid

[14] ibid

[15] Julian Savulescu, Conscientious Objection in Medicine, 332 British Medical Journal 294 at 295. (2006)

[16] ibid

[17] [2012] CSOH 32 at [15].

[18] ibid

[19] National Health Act, 2014.

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About Ajang Precious Esq

Ajang Precious is an experienced associate with a demonstrated history of working in the law practice industry. He is skilled in literature, law, public speaking, creative writing, and poetry. Strong professional with a Bachelor of Laws-LLB focused in LAW from the University of Calabar.