Rawls, Reasonableness, and Conscientious Objection in Health Care

Xavier Symons

Rawls, Reasonableness, and Conscientious Objection in Health Care

Abstract
Much ink has been spilled in recent years over the controversial topic of conscientious objection in health care. In particular, commentators have proposed various ways with which we might distinguish legitimate conscience claims from those that are poorly reasoned or based on prejudice. The aim of this chapter is to argue in favor of the “reasonableness” approach to conscientious objection, viz., the view that we should develop an account of “reasonableness” and “reasonable disagreement” and use this as a way of distinguishing licit and illicit conscience claims. The author discusses Rawls’ account of “reasonableness” and “reasonable disagreement,” and consider how this might guide us in regulating conscientious objection in health care. The author analyzes the “public reason” account offered in Card (2007, 2014), and argue that we should modify Card’s account to include a consensus among regulators about what counts as “basic medical care.” The author suggests that Medical Conscientious Objection Review boards should consider whether conscience-based refusals are based on defensible ethical foundations.


Symons X. Rawls, Reasonableness, and Conscientious Objection in Health Care. In: Grant B, Drew J, Christensen H, editors. Applied Ethics in the Fractured State (Research in Ethical Issues in Organizations, Vol. 20). Bingley, UK: Emerald Publishing Limited; 2018. p. 45-54. https://doi.org/10.1108/S1529-209620180000020004

(Correspondence) Losing doctors with integrity will harm patients and profession

Karol F Boschung

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
I am responding to a letter by Dr. Eric Brown about semantics in referring for medical assistance in dying (MAiD). . . The intended implication, it seems, is that any conscientious objectors should simply leave the practice of medicine.


Boschung KF. (Correspondence) Losing doctors with integrity will harm patients and profession. Can Med Assoc. J. 2018;7.

Conscientious objection in reproductive health – an ancient prerogative or harmful practice

JM Thorp Jr

BJOG: An International Journal of Obstetrics and Gynaecology
BJOG: An International Journal of Obstetrics and Gynaecology

Extract
We must return to our Pythagorean roots and not substitute a secular group conscience to replace individual conscience, and thereby protect the rights of all parties. My hope is that our specialty will uphold the right of individual clinicians to practise according to their consciences and we will continue to welcome Hippocratic clinicians into our ranks.


BJOG: An International Journal of Obstetrics and GynaecologyJr JT. Conscientious objection in reproductive health – an ancient prerogative or harmful practice. BJOG: An International Journal of Obstetrics and Gynaecology. 2018 Oct;125(11):1357-1358.

Weakening the ethical distinction between euthanasia, palliative opioid use and palliative sedation

Thomas David Riisfeldt

Journal of Medical Ethics
Journal of Medical Ethics

Abstract
Opioid and sedative use are common ‘active’ practices in the provision of mainstream palliative care services, and are typically distinguished from euthanasia on the basis that they do not shorten survival time. Even supposing that they did, it is often argued that they are justified and distinguished from euthanasia via appeal to Aquinas’ Doctrine of Double Effect. In this essay, I will appraise the empirical evidence regarding opioid/sedative use and survival time, and argue for a position of agnosticism. I will then argue that the Doctrine of Double Effect is a useful ethical tool but is ultimately not a sound ethical principle, and even if it were, it is unclear whether palliative opioid/sedative use satisfy its four criteria. Although this essay does not establish any definitive proofs, it aims to provide reasons to doubt—and therefore weaken—the often-claimed ethical distinction between euthanasia and palliative opioid/sedative use.


Riisfeldt TD. Weakening the ethical distinction between euthanasia, palliative opioid use and palliative sedation. J Med Ethics 2019;45:125-130.

Nurses’ use of conscientious objection and the implications for conscience

Christina Lamb, Marilyn Evans, Yolanad Babenko-Mould, Carol Wong, Ken Kirkwood

Journal of Advanced Nursing
Journal of Advanced Nursing

Absract
Aims:
To explore the meaning of conscience for nurses in the context of conscientious objection (CO) in clinical practice. Design: Interpretive phenomenology was used to guide this study.

Data sources: Data were collected from 2016 ‐ 2017 through one‐on‐one interviews from eight nurses in Ontario. Iterative analysis was conducted consistent with interpretive phenomenology and resulted in thematic findings. Review methods: Iterative, phased analysis using line‐by‐line and sentence highlighting identified key words and phrases. Cumulative summaries of narratives thematic analysis revealed how nurses made meaning of conscience in the context of making a CO.

Impact: This is the first study to explore what conscience means to nurses, as shared by nurses themselves and in the context of CO. Nurse participants expressed that support from leadership, regulatory bodies, and policy for nurses’ conscience rights are indicated to address nurses’ conscience issues in practice settings.

Results: Conscience issues and CO are current, critical issues for nurses. For Canadian nurses this need has been recently heightened by the national legalization of euthanasia, known as Medical Assistance in Dying in Canada. Ethics education, awareness, and respect for nurses’ conscience are needed in Canada and across the profession to support nurses to address their issues of conscience in professional practice.

Conclusion: Ethical meaning emerges for nurses in their lived experiences of encountering serious ethical issues that they need to professionally address, by way of conscience‐based COs.


Lamb C, Evans M, Babenko-Mould Y, Wong C, Kirkwood Ken. Nurses’ use of conscientious objection and the implications for conscience. J Adv Nurs 2018 Oct 16. doi: 10.1111/jan.13869

The Challenges of Conscience in a World of Compromise

Amy J. Sepinwall

Nomos LIX:Compromise
Nomos LIX:Compromise

Abstract
The process of crafting and passing legislation might be thought to be the locus of compromise par excellence.1 Yet, where the law that results impinges upon moral or religious belief or practice, the issue of compromise arises anew, in both senses of the word: Individuals who oppose the law on moral or religious grounds believe that their political obedience will compromise them in a fundamental way. Their plea for an exemption from the objectionable legal requirement is, then, a bid for further compromise.2 Compromise in the first sense concerns an undercutting of the self, while compromise in the second sense involves a grant of concessions. Yet, unlike compromises that arise in the legislative process, or at least in some ideal version of it,3 the compromise involved in an exemption from a neutral law of general application involves neither an exchange of benefits nor the prospect of mutual benefit-two hallmarks of compromise in, say, political (and other) negotiations.4 There are several reasons to doubt the wisdom or fairness of the requested exemptions, then.


Sepinwall AJ. The Challenges of Conscience in a World of Compromise. In: Knight J, editor. Nomos LIX: Compromise. New York:NYU Press, 2018. pp. 220-247.

Is Euthanasia Psychiatric Treatment? The Struggle With Death on Request in the Netherlands

Damiaan Denys

The American Journal of Psychiatry
The American Journal of Psychiatry

Author Summary
A 42-year-old married woman with three children was referred to our department for treatment of treatment-resistant depression. Pharmacotherapy, psychotherapy, and ECT were unsuccessful. We applied deep brain stimulation, which was partially effective and reduced depressive symptoms by 30%, but the patient still suffered. During our struggle to find optimal deep brain stimulation parameters in the course of treatment, the patient requested that her general physician provide euthanasia. Following guidelines in the Netherlands, our team was consulted, but we disapproved because her suffering was not prospectless and there still were treatment options with deep brain stimulation. Although we had treated her intensively for 2 years, our advice was disregarded. Eight weeks later we received the obituary of the patient.


Denys D. Is Euthanasia Psychiatric Treatment? The Struggle With Death on Request in the Netherlands. Am J Psychiatry. 2018 Sep 1;175(9):822-823. doi: 10.1176/appi.ajp.2018.18060725.

On Avoiding Deep Dementia

Norman L Cantor

The Hastings Center Report
The Hastings Center Report

Abstract
Some people will confront Alzheimer’s with a measure of resignation, a determination to struggle against the progressive debilitation and to extract whatever comforts and benefits they can from their remaining existence. They are entitled to pursue that resolute path. For other people, like myself, protracted maintenance during progressive cognitive dysfunction and helplessness is an intolerably degrading prospect. The critical question for those of us seeking to avoid protracted dementia is how best to accomplish that objective. One strategy is to engineer one’s own death while still mentally competent to do so (even in the stage of mild dementia). If I were to use a preemptive strategy in the face of a dementia diagnosis, I would probably choose to stop eating and drinking, a process known as voluntarily stopping eating and drinking. An alternative tactic for avoiding prolonged dementia would be to allow oneself to decline into moderate dementia—thus losing capacity to perform self-deliverance or even to make serious medical decisions—but before getting to that point to provide advance instructions rejecting prospective life-sustaining medical interventions. These advance instructions would authorize palliative but not curative measures. My current personal instructions define the point of intolerable cognitive decline triggering medical nonintervention as “mental deterioration to a point when I can no longer read and understand written material such as a newspaper or financial records such as a checkbook.” These instructions dictate allowing my demise at a point of moderate dementia when I may not be perceptibly suffering, when I may still be getting some rudimentary satisfaction from my debilitated life, and when I no longer recall the preoccupation with personally intolerable indignity that motivated my instructions. Can I expect that my advance instructions will be implemented in those circumstances? Is it lawful, and is it moral for a surrogate decision-maker and associated caregivers to allow an uncomprehending, ostensibly content but demented individual to die? My analysis herein contends that it is not only lawful and moral but also legally required to implement clear, considered advance instructions even at a stage of moderate dementia.


Cantor NL. On Avoiding Deep Dementia. Hastings Cent. Rep. 2018 Aug 16;48(4):15-24.

What the Doctor Ordered: Balancing Religion and Patient Rights in U.S. Pharmacies

Rachel T Caudel

Kentucky Law Journal
Kentucky Law Journal

Extract
Conclusion

. . . A statute that requires pharmacies to select their own policies regarding contraceptives and sexual health medication, to publish that policy, and to be required to adhere to the stated policy, however, is a near perfect solution to the delicate balance of protected rights. With cooperation from physicians and compliance within the pharmacies, women will be able to access the pharmaceuticals prescribed to them without delay, hassle, misinformation, or shame. Women will be able to find a pharmacist who will allow them to exercise their choice to use or not to use contraceptives. Pharmacists, on the other hand, will more easily schedule their careers to line up with their moral and religious convictions. A pharmacist will easily be able to determine a pharmacy’s policy on sexual health medications and contraceptives and therefore more easily find employment with a pharmacy that shares his value system. An individualized sexual health medication policy, when accompanied by a directory program, policy publication and compliance supervision, is the best, and possibly only method of insuring all rights at stake are protected.


Caudel RT. What the Doctor Ordered: Balancing Religion and Patient Rights in U.S. Pharmacies. Ky Law J. 2018 Aug;97(3):521-539.

Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare

Emmanuelle Bribosia, Isabelle Rorive

The Conscience Wars

Abstract
While the right to abortion is not spelled out as such in the international or regional human rights treaties, recent developments strongly support the view that a right to safe and legal abortion is a woman’s human right. A sustainable model of conscientious objection in reproductive healthcare must take into account the human rights developments concerning induced abortion. For the past hundred years, conscientious objection has been used almost exclusively in the context of refusal to perform compulsory military service. There are major difficulties in trying to transpose the debate surrounding conscientious objection to the realm of reproductive health. The wider context of conscience claims raised after the legalisation of same-sex unions is even more disturbing. It shows the detrimental effect hat accommodation policies could have on the full operation of non-discrimination law. Recent supranational and national cases show that the recognition of conscientious objection in reproductive healthcare is hardly sustainable on the ground. A snowball effect seems inevitable. And even well-defined legal safeguards are failing. This leads to wide discriminatory treatment based on gender, territorial status, low social condition and ethnicity. This also leads to the failure to recognise the dignitary harm to women and the perpetuation of social prejudice and structural inequality which result from this approach. In other words, designing, implementing and monitoring a strictly regulated conscience clause in reproductive healthcare resembles an effort to square the circle. Something always falls by the wayside, and the ‘something’ is no less than women’s human rights.


Bribosia E, Rorive I. Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare. In Chapter 15, Mancini S, Rosenfeld M, editors. The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, Cambridge: University Press, 2018 (392-413).