Marion Verkade, Julie Karsten, Frans Koenraadt, Frans Schalkwijk
Abstract
Conscience can be defined as a dynamic psychological function that regulates our behavior and identity through self-reflection, in an interplay of the constituent functions empathy, self-conscious emotions, and moral reasoning. Functions that are self-contained influences, but which together form the conscience. Compared to non-offenders, offenders have been reported to exhibit lower levels of these aspects . This study aims to provide a more dynamic understanding of how these aspects of conscience interact and constitute its functioning. Contrary to our expectation, network analysis (N = 281) revealed no significant differences in the structure or density of conscience networks between offenders (n = 123) and non-offenders (n = 158). Results of regression analyses suggest that conscience depends strongly on the development of self, on decentralization from self-centeredness to a broadened perspective, and more on capacities for affective than cognitive empathy. Cognitive distortions appeared not to be predictive of lower levels of guilt or shame. Failure of one of the constituent aspects appears to negatively affect the functioning of conscience as a whole. Diagnosing conscience functioning must therefore be aimed at all of those aspects in order to enable targeted interventions.
The College of Physicians and Surgeons of Ontario (CPSO) has invited comment on a draft policy and related document, Human Rights in the Provision of Health Services (Human Rights 2022) and Advice to the Profession: Human rights in the Provision of Health Services (Human Rights-Advice 2022). The draft revision updates the current policy through which the CPSO imposed a requirement for “effective referral” for morally contested services. Ontario physicians unwilling to provide a procedure they consider unethical/immoral/harmful are required by the CPSO to make an “effective referral” — to connect a patient with a practitioner willing to do what they refuse to do. The policy survived a constitutional legal challenge. It appears that judicial approbation has become a license to make increasingly oppressive demands on objecting physicians.
In particular, Human Rights 2022 now requires physicians who make effective referrals to follow up and ensure that patients have connected with the practitioner or agency to whom they were referred. If not, physicians are required to take additional steps to bring the connection about. Further, the policy now emphasizes an obligation to provide formal clinical referrals for morally contested services, but anticipates that “many patients” will need physician help to get services even when they can be directly accessed.
Human Rights 2022 forbids physicians to “express” moral judgement about patient beliefs. That is impossible. Both agreement and refusal to provide or collaborate in a service express moral judgement about a service being sought, and implicitly express a similar judgement about a patient’s beliefs.
Ontario physicians are now forbidden to “express” moral judgement about services sought by patients. This contradicts the Canadian Medical Association (CMA) Code of Ethics and Professionalism. It also obstructs physician-patient matching, which is an effective strategy for accommodating patients and physicians and improving health outcomes. Finally, the prohibition amounts to a de facto suppression of physician freedom of conscience, which necessarily entails an expression of moral or ethical judgement about services sought by patients.
A new provision requires physicians to consider patient access to services when making decisions about their scope of practice and clinical competence. This may be intended to pressure physicians to extend their scope of practice/clinical competence to include services to which they object for reasons of conscience. Previously, the CPSO had assured the courts that physicians opposed to making effective referrals could avoid conflicts by changing their scope of practice: from general practice to hair restoration, for example.
Another new passage states that physicians must not “provide false, misleading, confusing, coercive, or incomplete information” about treatment options. The obligation to adhere to principles of informed consent is affirmed by Human Rights 2022 and precludes such conduct, so the pejorative warning is unnecessary. Its location within the document indicates that it is addressed to physicians whose religious or moral beliefs cause them to object to certain procedures. The message conveyed is that these physicians are likely to lie, deceive, mislead and coerce their patients, so an explicit warning is needed. Demeaning innuendos of this kind are condemned by the CPSO in other contexts and considered a form of workplace harassment by the Ontario government.
Three disparate elements of the revised policy are noteworthy.
First: Human Rights 2022 states that physicians must not comply with apparently discriminatory patient requests to be treated by a physician with a specific “social identity,” and it authorizes them to refuse required medical care if the request has made them feel unsafe. In effect, the new provision instructs physicians that they must not comply with patient requests that would facilitate perceived wrongdoing by someone else (i.e., discrimination by the patient). This is exactly the same reasoning applied by physicians who refuse to facilitate euthanasia and assisted suicide by effective referral. Through Human Rights 2022 the CPSO confirms the validity of their reasoning
Second: the policy directs physicians to incorporate policies that appear to be constitutive elements of a particular socio-political doctrine into their practices. Doctrinally defined policies bring doctrinal baggage that may be rejected by physicians who hold a variety of comprehensive religious and non-religious world views. The CPSO has not demonstrated that the socio-political doctrine it intends to impose through Human Rights 2022 is the only one acceptable in Ontario medical practice.
Finally, all physicians working in faith-based hospitals and hospices are required to provide “access to information and care, including effective referrals for services, treatments and procedures that are not provided” in the institution. The direction is clearly intended to subvert the exercise of freedom of religion by religious groups operating healthcare facilities.
Objecting practitioners are typically willing to work cooperatively with patients and others to accommodate patient access to services as long as cooperation does not involve collaboration: an act that establishes a causal connection to or de facto support for the services to which they object. They are usually willing to provide patients with information to enable informed decision-making and contact with other health care practitioners. The distinctions between cooperation and collaboration and providing information vs. providing a service enable an approach that accommodates both patients and practitioners.
The Project recommends that the College adopt a single protection of conscience policy applicable to all services and procedures. This submission includes an example of such a policy. However, should current policy structure be maintained, specific recommendations are made for revisions to Human Rights 2022 to address problematic elements identified in the submission.
The College of Physicians and Surgeons of Ontario (CPSO) has invited comment on a draft revision of its euthanasia/assisted suicide policy, Medical Assistance in Dying (CPSO MAID 2022). The focus of this submission is on issues related to the exercise of freedom of conscience by practitioners who refuse to do what they believe to be unethical or immoral in relation to euthanasia and assisted suicide (EAS, “medical assistance in dying”, MAID).
The CPSO has indicated that it does not consider EAS requests to be emergencies. However a source cited in CPSO MAID 2022 indicates otherwise, and CPSO MAID 2022 is silent on the issue. CPSO MAID 2022 should explicitly confirm CPSO statements that MAID is not a treatment option in an emergency, requests for MAID are not emergencies, and physicians are never required to assess patients for or provide the service.
Failed self-administration of lethal EAS medication can bring patients to hospital emergency rooms. Requiring EAS practitioners to be present and remain with patients self-administering EAS drugs until death ensues would prevent this and other problems, like delayed discovery of corpses in circumstances that would trigger police and coroner investigations.
CPSO MAID 2022 requires EAS practitioners to falsify death certificates. This is contrary to accepted international standards and can be considered deceptive, unethical or professionally ill-advised. EAS practitioners unwilling to falsify death certificates should not be compelled to do so.
Practitioners who believe that a patient is ineligible for MAID must refuse to provide euthanasia or assisted suicide or do anything to facilitate the services. Prominent medical practitioners insist that it is impossible to establish that mental illness is irremediable. The CPSO has no basis to proceed against them if they refuse to do anything to further an EAS request based on mental illness alone.
Patients can sign a waiver authorizing euthanasia if they lose capacity to consent before the time appointed for the procedure. They may later express ambivalence, or having apparently lost capacity, express ambivalence about proceeding with euthanasia at the appointed time. However, the benchmark set by the Criminal Code is refusal. EAS practitioners may legally proceed if the patient expresses only ambivalence. CPSO MAID 2022 should provide ethical direction or guidance in relation to the response expected from EAS practitioners in such circumstances.
Abstract Contemporary bioethics generally stipulates that public moral deliberation must avoid allowing religious beliefs to influence or justify health policy and law. Secular premises and arguments are assumed to maintain the neutral, common ground required for moral deliberation in the public square of a pluralistic society. However, a careful examination of non-theistic arguments used to justify euthanasia (regarding contested notions of human dignity, individual autonomy, and death as annihilation) reveals a dependence on metaethical and metaphysical beliefs that are not universally accepted in a pluralistic society. Such beliefs function in non-theistic arguments in the same way that foundational beliefs justify moral convictions in religious frameworks of belief. This parallel is apparent when religious belief is defined broadly (a la John Reeder) as ‘the search for the good in light of the limits and possibilities of the real.’ Seen through this interpretive lens, frameworks comprising Secular foundational commitments function, in ethically relevant respects, like the guiding beliefs found in the comprehensive frameworks of traditional religions. When conscientious practice in healthcare is reconsidered in light of this foundational similarity between the religious and the secular, it is clear that those who object to the foundational beliefs underpinning Secular arguments for euthanasia should not be required to provide, participate in, or refer patients for euthanasia (or other ethically controversial practices similarly dependent on contested frameworks of belief) in pluralistic societies that prize moral freedom as a primary human good.
Ramona Coelho, Trudo Lemmens, K. Sonu Gaind, John Maher
World Medical Journal
Extract MAiD deaths have increased dramatically year after year in the short time since Canada’s legalization in 2016. MAiD cases in Canada involve almost exclusively euthanasia, with death being administered by the health care provider via lethal injection. Within three years of its introduction in 2016, the death rate by MAiD had risen to 2% of all deaths. By 2020, the rate had increased to 2.5% of all deaths, and by 2021, it was 3.3% of all Canadian deaths, with some provinces approaching 5%. These figures largely represent the escalating death rates even before the government expanded MAiD to those living with disabilities in 2021 . . . In coming years, death rates are thus likely to increase even more substantially as euthanasia and assisted suicide for those not dying but living with disabilities will be more widely provided, as well as once further expansion occurs in March 2023, to those living with sole mental health disorders.
Extract Military medicine is described as the ethical issue of dual loyalty, and how it relates to those health care personnel who are both officers in the military and are medical officers such as doctors and nurses. . . Notably, I wear two hats − one to my country as an officer and one to my patients as their doctor. This clinical role may bring conflict between professional duties to a patient and obligations − expressed or implied, real or perceived, to the interest of a third party such as an employer, an insurer or the state − that can violate patient’s rights. Dual loyalty, in this case, is simultaneous for obligations expressed or implied to a patient and a third party such as the military.
Abstract The Canadian Medical Association (CMA) has variously expressed support for physician freedom of conscience in codes of ethics, resolutions at successive General Councils and in policies concerning specific procedures. For over fifty years it has insisted that physicians should not be compelled to make referrals for procedures to which they object for reasons of conscience.
It appears that the great majority of CMA members support this position, but are unaware of its history. This paper revisits this history at a time when increasingly strident claims have culminated in demands that the state should force objecting physicians to collaborate in euthanasia and assisted suicide by referral.
The first CMA “conscience clause” was introduced into the Code of Ethics in 1970 following the reform of Canada’s abortion law. The provision did not mention conscience (or abortion) but was clearly intended to protect physician freedom of conscience. It was reaffirmed and more clearly articulated the following year by the CMA Annual General Council.
A dramatic increase in the demand for abortion resulted in pressure on health care workers and institutions. A 1977 amendment of the Code was widely interpreted to require objecting physicians to refer for abortion. This caused significant division within the Association and was removed in 1978.
The protection of conscience provision in the Code of Ethics remained unchanged after the Supreme Court of Canada struck down Canada’s abortion law in 1988. The CMA stressed that there should be no discrimination against physicians who refused or who agreed to participate in abortion.
Twelve years later the CMA Director of Ethics said there was “no ethical consensus” to support mandatory referral, adding subsequently that physicians were not obliged to do what they believed was wrong. This position was supported by the Canadian Psychiatric Association.
The CMA rejected claims by two law professors in 2006 that objecting physicians were required to refer for abortion, two years later reiterating its support for physicians who refused to do so. These skirmishes reflected a continuing and increasing threat, but do not appear to have caused the CMA to explore or develop the foundation of its commitment to protect physician freedom of conscience.
As the issue of euthanasia and assisted suicide (EAS) made its way to the Supreme Court of Canada in 2014, CMA leaders moved the Association from opposition to the procedures to purported “neutrality” and support for physician freedom of conscience. However, in expressing unconditional support for legal EAS, the changed policy potentially exposed many physicians to demands that could generate serious conflicts of conscience.
When the Supreme Court ruled in Carter the CMA leadership was ready to implement euthanasia and assisted suicide, but not to mount a cogent, articulate and persuasive defence of physician freedom of conscience. CMA leaders waffled on the issue of mandatory referral to EAS providers when it exploded in the months following the ruling. However, a substantial majority of CMA members opposed mandatory referral, and the CMA General Council approved a policy framework for implementing the Carter decision did not require it.
The first CMA statement addressing the subject of physician freedom of conscience at a foundational level was a 2016 submission opposing a state regulator’s plan to compel objecting physicians to make an “effective referral” to EAS providers. Important elements in the submission were incorporated into CMA policy Medical Assistance in Dying the following year.
In brief, the CMA expects physicians to notify patients of their objections to EAS and respond to patient requests for EAS by acknowledging them respectfully and providing information they need to exercise moral agency and give effect to their decisions. This includes information about how to access an appropriate health care network. Physicians are not obliged to provide or participate in EAS or to facilitate it by referral to a person or entity willing to provide the service. However, they must cooperate in a transfer of care initiated by the patient or others and transfer medical records upon request. While this policy is specific to euthanasia and assisted suicide, it can be applied to other procedures. There is no principled reason to suggest otherwise.
Relevant sections of the CMA’s new Code of Ethics and Professionalism adopted in 2018 are consistent with these requirements and reflect the position on referral that the CMA has now held for fifty years. The Code’s emphasis on professionalism does not imply that “professional expectations” override physician freedom of conscience, an implication inconsistent with the emphasis placed on moral agency, integrity and conscience in the Code and CMA policy statements. Further, claims about “professional expectations” are not neutral. Subordinating freedom of conscience to a dominant or purportedly “neutral” theory of professionalism will generate illicit discrimination and exacerbate rather than resolve conflict within the profession.
Informed by careful reflection about the role and importance of freedom of conscience in health care, a serviceable stand-alone policy on physician freedom of conscience could be drafted by drawing on past CMA statements, its submission to the CPSO on effective referral, and the revised CMA Medical Assistance in Dying policy. However, in doing so it is essential to avoid entanglement in controversies about the acceptability of morally contested procedures. Instead, a broad and principled approach is necessary, one that recognizes that freedom of conscience serves the fundamental good and dignity of the physician as a human person, not merely professional autonomy or independence.
Impact on freedom of conscience for health care practitioners and institutions
Sean Murphy
Protection of Conscience Project
Executive Summary New South Wales’ Voluntary Assisted Dying Act 2022 No. 17, drafted and introduced by Independent MLA Alex Greenwich, closely resembles Queensland’s Voluntary Assisted Dying Act 2021. It will legalize euthanasia and assisted suicide (termed “voluntary assisted dying”) in the Australian state when it comes into force in January, 2023. This review considers the impact the Act may have on health care workers and institutions opposed to euthanasia or assisted suicide (EAS) for reasons of conscience. Part I outlines the main features of the law, providing a context for discussion of provisions relevant to freedom of conscience in Part II (Individual Freedom of Conscience) and Part III (Institutional & Collective Freedom of Conscience).
Overview
Eligibility
People seeking euthanasia/assisted suicide (EAS) must be adults with an advanced, progressive disease or medical condition that is causing suffering (of any degree or kind) and that is expected to cause death within 12 months (in the case of neurodegenerative conditions) or within 6 months in all other cases. They must be acting voluntarily, without pressure or duress, and be capable of making and communicating medical decisions. They can be mentally impaired or have dementia or a disability, but EAS cannot be provided for mental impairment, dementia or disability alone. Decision-making capacity is presumed in the absence of evidence to the contrary if a patient appears to understand the consequences of a decision. The Act acknowledges that capacity can be temporarily or permanently lost. It imposes residency requirements that can be waived for compassionate reasons.
Practitioners
Only EAS-trained medical practitioners with least ten years general practice experience or specialist credentials can act as EAS coordinators and consultants. Other EAS trained medical practitioners and nurse practitioners may administer euthanasia.
Discussion with patients
It appears that NSW legislators muddled the wording of the provision about discussions with patients while attempting to modify the comparable provision in Queensland’s Voluntary Assisted Dying Act 2021. All health care workers, contracted care service workers and medical practitioners can initiate discussion about or suggest euthanasia/assisted suicide to patients, even if patients have not expressed an interest, as long as they provide other information required by the Act. If a patient asks about EAS, contracted care service workers and health care workers other than medical practitioners can provide EAS information, but need not provide information about available options or suggest that the patient talk to a medical practitioner. However, none are required to suggest or initiate discussion about EAS.
The EAS process
The EAS process begins with a “clear and unambiguous” first request to a medical practitioner made personally by a patient (not a third party). After discussing alternative options, the medical practitioner must accept or reject the request and promptly notify the patient. A practitioner who rejects a request must advise the patient that others may be able to assist, and must provide information about them or the Voluntary Assisted Dying Care Navigator Service. An EAS-qualified medical practitioner who accepts a request becomes the coordinating practitioner, responsible for supervising the EAS request, assessment and administration process.
A medical practitioner who accepts a request must assess the patient’s eligiblity. Patients deemed eligible must be referred to a consulting practitioner to confirm the assessment, and can be referred repeatedly to consulting practitioners until eligibility is confirmed. Referrals to specialists are optional, and their opinions are not binding.
A patient deemed eligible by two medical practitioners and who wishes to proceed must make a second EAS request, then a written declaration witnessed by two people, and a final request. Finally, with the coordinating practitioner’s assistance, me must make an administration decision: to opt for assisted suicide or euthanasia. Assisted suicide is less reliable than euthanasia, and experience elsewhere demonstrates that very few choose assisted suicide when both euthanasia and assisted suicide are available.
The second request, final request, and administration decision could all occur during the same consultation, although a final request cannot be made until the day after the completion of the second (consulting) assessment, and cannot normally be made within five days of a first request; the latter requirement can be waived if the patient may lose capacity or die before EAS can be provided.
Subject to Australian national laws, the Act explicitly allows the use of audiovisual communication for first and final requests and administration decisions. The Act does not explicity prohibit audiovisual communication for EAS assessments. Australia’s Criminal Code currently prevents this. Should the Code be amended to allow it, videoconferencing for first and final requests and administration decisions would immediately be allowed, and it appears that professional regulators in New South Wales would be able to permit videoconferencing for EAS assessements.
Providing EAS
Coordinating practitioners must be authorised by the Voluntary Assisted Dying Board (the Board) to prescribe a lethal substance for each patient, whether it is to be practioner-administered or self-administered. A practitioner providing euthanasia must have an adult witness present and ensure that the patient has decision-making capacity and is acting voluntarily. A patient can self-administer lethal medication at any time and place, without notifying anyone. Neither a witness or confirmation of decision-making capacity or voluntariness is required. It is thus possible for death by self-administration to occur in public or inconvenient places or remain undiscovered for some time. If the patient is incapacitated but does not die after being administered or ingesting the lethal substance, it does not appear that an additional lethal dose can be given to kill the patient unless the patient regains capacity and consents.
The wording of the Act seems to leave open the possibility that a friend, family member, agent or contact person could put the substance to or into the mouth of a patient who needs help to self-administer it, which, in some circumstances, would be indistinguishable from administering it. A required statutory instruction to patients that they are not obliged to self-administer the lethal substance could contribute to this outcome.
Death certificates
The Act requires the cause of death be falsified by reporting it as the disease or medical condition for with EAS was approved. Falsification of the cause of death on death certificates is contrary to international standards for identifying causes of death that are acknowledged by the Australian government. Falsification of death certificates contributed to the murder of over 200 patients by a British medical practitioner and led to unfavourable comments by the chairman of the subsequent inquiry into the murders.
Voluntary Assisted Dying Care Navigator Service
The New South Wales government will establish the Voluntary Assisted Dying Care Navigator service to assist those seeking “support, assistance and information” about EAS services. VADCNS will be a service dedicated to enabling euthanasia/assisted suicide, so it will not be equivalent to a service providing information and assistance related to a variety of government and health services.
Institutions (“entities”)
Institutions are categorized as “residential facilities” like nursing homes, hostels, group homes, etc. operated by “relevant entities” (excluding individuals) and “health care establishments” like hospitals or hospices operated by “health care entities” (including individuals). They may decide not to provide EAS related services and information.
The Act imposes obligations on residential facilities and health care establishments if a person in their care requests EAS information or services that they do not provide. They must allow a VADCNS employee or someone else “reasonable access” to anyone in their to provide EAS information.
Generally speaking, governing entities are expected to facilitate the transfer of patients in health care establishments to and from a location where EAS services can be provided.
On the other hand, they are expected to allow all EAS services in residential facilities for all permanent residents, and for all occupants who are not permanent residents if an EAS practitioner decides that transferring them “would not be reasonable in the circumstances.”
Oversight
The operation of the Act is to be overseen by an appointed Voluntary Assisted Dying Review Board. It must approve each EAS application and residency exemption, maintain a list of registered health practitioners willing to be involved in EAS services and monitor and report annually upon the operation of the Act. The Supreme Court of New South Wales is empowered to review and overturn decisions about residency, capacity, and voluntariness (not diagnosis or prognosis). Coordinating practitioners may refuse to continue if the Court overturns a decision about capacity or voluntariness, but must then transfer the patient to the consulting practitioner or someone eligible to act as coordinating practitioner.
Illusion of neutrality
The Act identifies eleven principles underpinning the statute and seems to give equal weight to all of them. Six are irrelevant to conflicts of conscience in relation to supporting or participating in euthanasia/assisted suicide and five are subject to morally partisan interpretations. This enables an adjudicator to impose subjective and contested views about the meaning and importance of each principle during an ostensibly neutral “rights balancing” analysis. No one should be under the illusion that the principles identified in the Act can be fairly and objectively applied in a “rights balancing” exercise when there is fundamental disagreement about what they mean.
The provision of euthanasia or assisted suicide under the Act is not considered palliative care, which is clearly distinguished as an alternative option. People hold different views about the moral acceptability of euthanasia and assisted suicide and whether or not the procedures are forms of health care or medical practice. However, the Act assumes that euthanasia and assisted suicide are morally acceptable forms of healthcare and must be characterized as death by natural causes rather than homicide or suicide. This does not demonstrate respect for different views. On the contrary: it effectively imposes a chokehold on public discourse, suppressing the words needed those opposed to the Act to express their reasoning.
Individual Freedom of Conscience
Conflicts of conscience
The health care professions are not divided into sharply defined groups of objecting and non-objecting practitioners. The position of many practitioners depends upon the nature of the illness or condition, opinions about decision-making capacity, voluntariness, or other issues they consider relevant.
The broader the grounds for euthanasia and assisted suicide, the more likely it is that conflicts of conscience will arise. By restricting eligibility to competent adults with terminal illnesses or conditions, and by explicitly ruling out EAS for disability, dementia or “mental health impairment” alone, the Act reduces the number of practitioners likely to experience conflicts of conscience when it comes into force.
Capacity assessments
The ability of practitioners to perform capacity assessments for euthanasia and assisted suicide is disputed, and assessment of limited, fluctuating and episodic capacity can be particularly troublesome. Patients could be deemed capable of choosing euthanasia/assisted suicide even if they are considered incapable of challenging medical decisions about alternative treatments and palliative care. The burden of illness may make it easier to understand the EAS process than alternative treatment options, and to choose what is more easily understood rather than what might offer significant symptom relief. Even practitioners willing to facilitate euthanasia for clear-headed patients may not be confident that they can safely act upon a request made when the clouds of major depressive disorder part for a time, or if the patient recovers what another colleague considers “enough” capacity to make a valid request.
Risk assessments by EAS supporters, uncommitted practitioners and EAS opponents may reflect significantly different views about life-or-death decisions based on different underlying philosophical or ethical views. A priori biases in favour of an outcome cannot be avoided in EAS assessments.
Overturning practitioner decisions
The New South Wales Supreme Court can overturn a coordinating practitioner’s conclusion that a patient is ineligible for EAS because of involuntariness or lack capacity. This can cause a problem for practitioners who are certain of their conclusion because, though they can withdraw, the Act requires them to transfer the patient to a colleague willing to continue the EAS process. They may well consider this unacceptable, and it is completely unnecessary. The Act should be amended to require the Voluntary Assisted Dying Board to find a new coordinating practitioner should the coordinating practitioner withdraw in these circumstances.
Protection for objecting practitioners
All health care workers, contracted care service workers and medical practitioners can initiate discussion about or suggest euthanasia/assisted suicide to patients, even if patients have not expressed an interest, but they are not required to do so. By explicitly making discussion optional, the Act supports both practitioners who want to initiate discussion about EAS and those who think it best to let patients take the lead, responding to their enquiries or apparent interests.
All registered health practitioners who conscientiously object to EAS may refuse to participate in any part of the EAS process and refuse to be present when EAS is provided. The wording of the relevant provision is ambivalent, but the Act does not require objecting practitioners to do anything other than record the refusal and the reason for it in the patient’s medical record and report the refusal and reason for it to the Voluntary Assisted Dying Board. Further, objecting practitioners who refuse to do something (such as referral) are protected from disciplinary action by regulators if they act in good faith and reasonably believe that the refusal is in accordance with the Act. Hence, the starting point for objecting practitioners pressured by regulators or others to do more should be that the Act not only does not require it, but (interpreting the ambivalent provision in a fully protective sense) affirms that they need not do so.
Protection for other care workers
The protection for individual freedom of conscience offered by the Act is limited to registered health care practitioners. No protection is provided for the many people involved in the provision of health care, personal care and aged care who are not registered health practitioners, even though the Act explicitly recognizes their work. For example, nothing in the Act prevents employers from requiring a personal care worker or social worker to actively support the provision of EAS or to be present when lethal medication is administered.
Falsification of death certificates
Regardless of their views about euthanasia and assisted suicide, some medical practitioners are likely to object to falsifying the cause of death in death certificates. They may be uncomfortable about lying or dissembling to families about how their loved ones died or concerned that falsifying records and lying is likely to undermine the trust essential to the practice of medicine. Others may have principled objections to falsifying documents, lying, dissembling and other forms of deception under any circumstances. Finally, some may consider falsification ill-advised because it is likely to compromise important epidemiological data. If the state insists that death certificates must be falsified, the Act should be amended to make a medical member of the Voluntary Assisted Dying Review Board responsible for completing EAS death certificates (assuming that a Board member’s objection to doing so would also be accommodated).
Institutional & Collective Freedom of Conscience
Factors relevant to moral decision-making by entities/collectives are not necessarily identical to those concerning individuals, and the concept of individual freedom of conscience is applied analogically to collectives, so some differences are to be expected. This paper presumes that entities/collectives are entitled to rely upon constitutional guarantees of freedom of conscience, notwithstanding differences between individuals and collectives in the exercise of that freedom. Individuals and entities/collectives are equally concerned to avoid complicity in perceived wrongdoing. This obviously includes taking part directly in what they deem to be a wrongful act, but also causally contributing to by collaboration or contingent cooperation.
The Act does not admit the possibility of conscientious objection by entities/collectives. Consistent with this, the Act acknowledges the need to respect individuals’ culture, religion, beliefs, values and personal characteristics, but not those of entities/collectives. It imposes a number of constraints and requirements on objecting entities/collectives specifically to compel their cooperation and even collaboration, some of which go beyond legal constraints arising from legal occupancy status. Refusal to participate in or facilitate killing people for moral reasons is placed on the same level as refusals based on pragmatic considerations like lack of trained personnel or management of institutional branding. The Act thus implies that guarantees of freedom of conscience or religion are irrelevant to decision-making by entities/collectives about involvement in killing people, and, if they defend refusals on that basis, the Act puts them at a disadvantage.
The Act is is concerned with two kinds of institutions: “residential facilities” like nursing homes, hostels, group homes, etc. operated by “relevant entities” (excluding individuals), and “health care establishments” like hospitals or hospices operated by “health care entities” (including individuals). Regardless of structure, an “institution” in the sense relevant here always manifests a collective enterprise by individuals, so the term “entity/collective” is used here to keep this in mind.
Participation, cooperation, collaboration
The Act does not require entities/collectives to provide euthanasia or assisted or even to provide information about the procedures, so it does not threaten institutional freedom of conscience in relation to direct participation in EAS services. Instead, the Act is designed to enable the state to compel unwilling entities/collectives to cooperate and perhaps collaborate in killing people in their care or helping them kill themselves, and to disadvantage any that resist by appeals to freedom of conscience.
However, patients and practitioners cannot proceed with EAS in an objecting institution unless they notify insititutional authorities at each stage in the EAS process. This is fortunate, because providing EAS services in a private apartment in a residential facility would be radically different from providing them behind a curtain in a room shared with others, and the Act does not distinguish between the two situations. Nothing in the Act prevents objecting entities/collectives from imposing conditions on EAS-related activities that they are required to permit once they have been notified.
EAS information
Objecting entities/collectives must allow all institutional occupants access to EAS information. They could direct all patient enquiries about EAS to staff members trained to provide patients with information necessary to enable informed decision-making without compromising institutional moral integrity. Hence, the cooperation required in providing information about EAS does not appear to undermine institutional freedom of conscience.
First and final EAS requests
The Act leaves room for objecting entities/collectives to direct staff to fully and compassionately explore and document first requests, refuse those found to be clear and unambiguous, and provide information enabling patients to seek EAS elsewhere. They can thus comply with a number of the Act’s provisions without compromising institutional moral integrity. However, the Act also requires objecting entities/collectives to allow EAS practitioners to accept first and final requests from anyone in their health care establishments and residential facilities. Accepting requests (i.e., agreeing to act upon them), especially final requests, is more directly supportive of and causally related to euthanasia and assisted suicide than merely receiving and responding to requests, and thus more likely to be problematic for objecting entities/collectives.
Declarations, EAS assessments, administration decisions, and administration of lethal substance
Moreover, the Act demands that objecting entities/collectives allow EAS practitioners to provide all EAS assessments, consultations and euthanasia/assisted suicide for permanent residents in residential facilities. Contingent cooperation of this kind is likely to be problematic, especially in relation to patients who share rooms with others. If EAS practitioners cannot attend, objecting entities/collectives must “take reasonable steps to facilitate the transfer” EAS candidates to a location where they can receive EAS services, including lethal injection. This suggests that active collaboration might be expected, and it goes well beyond merely granting the equivalent of a residential tenancy right to service delivery at home. Landlords are not forced to help tenants travel to see EAS practitioners who can’t make home visits.
Objecting entities/collectives may refuse to allow the EAS process for institutional occupants in health care establishments and residential facilities only if, once more, they “take reasonable steps to facilitate” transfers to enable the procedures elsewhere. If that means initiating rather than simply cooperating in a transfer requested by others, the purported compromise may amount to a choice between two objectionable alternatives. In addition, the Act allows legal action against objecting entities/collectives that require transfers from their health care establishments for EAS procedures (including euthanasia and assisted suicide) if transfer “would not be reasonable in the circumstances.” It also enables patients and EAS practitioners to veto transfers of institutional occupants from residential facilities, thus forcing objecting entities/collectives to cooperate.
Credentials (privileges)
The Act’s demands that qualified practitioners be allowed to provide EAS services to patients in facilities poses a dilemma for objecting entities/collectives in granting credentials. Granting credentials for EAS would explicitly affirm the acceptability of euthanasia/assisted suicide and authorize the procedures, thus contradicting their moral commitments. However, granting credentials may be necessary to avoid legal liability, and it may be the only way for objecting entities/collectives to impose enforceable conditions and restrictions on provision of the service in order to protect other patients, staff and mitigate harm to institutional moral integrity.
Bias
The provisions of the Act suggest that NSW legislators not only believe that it is morally acceptable to kill patients or help them kill themselves in accordance with their law, but are unable to imagine or unwilling to concede that others could reasonably and collectively hold and live in accordance with the contrary view, and should be entitled to do so in a democratic state. This demonstrates a lack of moral imagination or unreflective and entrenched authoritarianism inconsistent with the best traditions of liberal democracy.
Abstract The recent social and legal debate in several European countries on abortion, euthanasia, and assisted suicide has caused a strong resurgence of the concerns of healthcare personnel as to the real possibility of protecting their consciences in their professional sphere. Individual refusal for religious, moral, deontological, or ethical reasons to participate in activities that directly or indirectly could result in the termination of a human life constitutes the most extreme manifestation of the legal phenomenon of conscientious objection. Although the European Convention on Human Rights does not recognize a general right to conscientious objection, since Bayatyan v. Armenia, the case law of the European Court of Human Rights has identified a connection between conscience-related claims to compulsory military service and Article 9 of the Convention. However, to this date, this doctrine has not been applied to cases that affect health-sensitive areas like abortion and contraception. This article analyzes the activity of the European Court of Human Rights in relation to the right to freedom of conscience and to conscientious objection, particularly in healthcare, and offers several final observations projected to possible future conflicts.
Extract Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs. . . . Conscience rights are also limited by the foundational duty of care, which must be maintained through referrals and transfers so that a refusal to provide a service does not result in abandonment of a patient. . . Physicians who work in the 11 U.S. jurisdictions that permit terminally ill people, under certain conditions, to request a prescription of lethal medication with the goal of ending their lives may also have mixed emotions and intuitions about participating in medical aid-in-dying. . . Conscientious objection to providing or participating in certain activities on principle should not be used to avoid patient care that a professional finds stressful, or as a remedy for the common problem of moral distress.
