Extract On February 18, the Department of Health and Human Services issued a rule, “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” that limits health care providers’ power to shape their practice by personal conviction. The rule narrows possible conscientious objection significantly, protecting patients’ rights and in the process eliminating public reinforcement of the harmful idea that religion and medicine are always destined to diverge.
Blum R. Conscience Rules: Implications for Care. Hastings Cent Rep 2011;41(3):c3.
Clinicians have to be prepared to go to court to put their case for the best interests of the child, and then accept the legal decision with good grace, however personally distressing. This is just another example in medicine of the need for all to work with less than desirable outcomes.
Extract “Do doctors have the right to refuse certain treatments on the grounds of personal conscience?” Is the question asking about Conway’s point about what the doctor sincerely, on medical grounds, considers to be in the patient’s best interests, or is the question asking about a doctor’s refusal to attend to a patient on the basis of some irrational prejudice? Horses of quite different colours — racing in different races.
Abstract One of the requirements in the Dutch regulation for euthanasia and assisted suicide is that the doctor must be satisfied ‘that the patient’s suffering is unbearable, and that there is no prospect of improvement.’ In the notorious Chabot case, a psychiatrist assisted a 50 year old woman in suicide, although she did not suffer from any somatic disease, nor strictly speaking from any psychiatric condition. In Seduced by Death, Herbert Hendin concluded that apparently the Dutch regulation now allows physicians to assist anyone in suicide simply because he or she is unhappy. In this paper, I reject Hendin’s conclusion and in particular his description of Mrs Boomsma as someone who was ‘simply unhappy.’ After a detailed narration of her lifestory, I turn to the American philosopher Harry Frankfurt’s account of volitional incapacity and love for a more accurate characterization of her suffering. Having been through what she had, she could only go on living as another person than the one she had been when she was a happy mother. That would have violated her integrity, and that she could not bring herself to do.
M Sercu, P Pype, T Christiaens, M Grypdonck, A Derese, M Deveugele
Journal of Medical Ethics
Abstract Background: In 2002, Belgium set a legal framework for euthanasia, whereby granting and performing euthanasia is entrusted entirely to physicians, and—as advised by Belgian Medical Deontology—in the context of a trusted patient–physician relationship. Euthanasia is, however, rarely practiced, so the average physician will not attain routine in this matter.
Aim: To explore how general practitioners in Flanders (Belgium) deal with euthanasia. This was performed via qualitative analysis of semistructured interviews with 52 general practitioners (GPs).
Results: Although GPs can understand a patient’s request for euthanasia, their own willingness to perform it is limited, based on their assumption that legal euthanasia equates to an injection that ends life abruptly. Their willingness to perform euthanasia is affected by the demanding nature of a patient’s request, by their views on what circumstances render euthanasia legitimate and by their own ability to inject a lethal dose. Several GPs prefer increasing opioid dosages and palliative sedation to a lethal injection, which they consider to fall outside the scope of euthanasia legislation.
Conclusions: Four attitudes can be identified: (1) willing to perform euthanasia; (2) only willing to perform as a last resort; (3) feeling incapable of performing; (4) refusing on principle. The situation where GPs have to consider the request and—if they grant it—to perform the act may result in arbitrary access to euthanasia for the patient. The possibility of installing transparent referral and support strategies for the GPs should be further examined. Further discussion is needed in the medical profession about the exact content of the euthanasia law.
Extract Upon completion of her DDS degree, Martha . . .enters into a verbal agreement with the principal dentist . . . After working at the practice for several months, Martha notices that her paycheques seem to be consistently smaller than expected . . . she sees that the office has not been collecting the twenty percent co-payment from the insured patients, and has been routinely writing this amount off . . . Her initial gut reaction is that the insured patients are benefiting from the practice, so maybe it’s not such a big deal. However, her recent education in dental ethics causes her to take a more reflective approach.
Extract This Comment, based on a review of other exemptions, concludes that enacting legislation to accommodate civil servants while still providing equal service to all members of the public would be both the most effective method of accommodation and the method most likely to be enacted by legislatures. The current methods of accommodation provide little protection for conscientious objectors because legislatures enact them infrequently and courts interpret them narrowly.
Abstract Article 9 of the European Convention on Human Rights provides protection for freedom of thought, conscience and religion. From one perspective, it may be said that Article 9 guarantees a right to conscientious objection in health care, whereas from another perspective, a Strasbourg case, such as Pichon and Sajous v France, effectively means that Article 9 provides little or no protection in that context. In this article it is argued that the matter is more complex than either of these two positions would suggest. Moreover, given the nature of the subject matter, national authorities should be afforded a significant margin of appreciation in the way that they protect and regulate conscientious objection. By way of illustration, there is a discussion of the ways in which Article 9 might affect conscientious objection in health care under English law. The final part of the article considers the conceptual limitations of Article 9 in thinking about conscientious objection in health care; in particular, the claim that the extent to which Article 9 of the Convention provides protection for a conscientious objection in the health care context is a different question from whether conscientious objection by doctors and other health care practitioners is justified in principle.
Abstract In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common- law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. This article argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This article looks at jury nullification, the royal prerogative of mercy, and prosecutorial discretion as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories of modern constitutionalism based on the preeminence of a reason- driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, this article suggests that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice.
Resolution adopted by the Council of Europe’s Parliamentary Assembly
Mark Campbell
Medical Law Review
Journal Extract The Council of Europe’s Parliamentary Assembly has adopted a resolution on conscientious objection in medicine, ‘The Right to Conscientious Objection in Lawful Medical Care’.1 In general terms, this resolution (‘the Resolution’) affirms the place of conscientious objection in the medical context while inviting member states to provide appropriate regulation of the practice of conscientious objection. In particular, it provides the following: first, there is a recognition that ‘[n]o person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason’.2 Secondly, the right of conscientious objection is affirmed together with the state’s responsibility ‘to ensure that patients are able to access lawful medical care in a timely manner’.3 Thirdly, it is acknowledged that ‘[i]n the vast majority of Council of Europe member states, the practice of conscientious objection is adequately regulated’.4 Fourthly, the Resolution invites member states ‘to develop comprehensive and clear regulations that define and regulate conscientious objection with regard to health and medical services’.5 Given that the Resolution sets out broad principles in this area and is not binding on member states—the Parliamentary Assembly has the role of a consultative body within the Council of Europe that seeks through its adopted texts to influence legislation and practice at a domestic level—the purpose of this short article is not to provide a line-by-line analysis of the text. It is rather to ‘read between the lines’ of the Resolution by examining its background and significance.
