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(Thesis) Comparative Legal Analysis of Conscientious Objection in Health Care

Slavomíra Slovinská

Abstract
The purpose of this thesis is to demonstrate what would be an appropriate model of the regulation of conscientious objections in health care. These objections are regulated in many countries’ national legislation, however, some of them fail to provide safeguards which would secure proper balance between the two conflicting interests – the health care professional’s right to act in accordance with his conscience and individual’s right to access health care. Therefore, this thesis analyzes regulation of the conscientious objection in the legal systems of the USA, the UK and the Slovak Republic with respect to the appropriateness of such regulation and major differences which they include. The thesis suggests that the protection of conscientious objection in the USA can go too far and be too excessive, while the UK presents much more appropriate model of regulation of conscientious objection with certain limitations. Furthermore, it submits that regulation of conscientious objection in Slovakia consists in general but vague clause creating the possibilities for future controversies.The thesis also analyses different opinions on the acceptability of conscientious objection in health care and finally, it suggests conditions and limitations of conscientious objection that should be met in the regulation of national legislation in order to find appropriate balance between the competing interests of health care professionals and patient.

Slovinská S. (Thesis) Comparative Legal Analysis of Conscientious Objection in Health Care. Central European University, Budapest, Hungary. 2010 Mar 29.

Conscientious objection to assigned work tasks: A comment on relations of law and culture

Roger Cotterrell

Abstract
This paper considers how far a legal-cultural perspective may help to explain contrasts in approaches, in different jurisdictions, to a particular legal issue addressed by five national reports on which the paper comments. The issue is: how should law respond to employees’ objections, on grounds of conscience, to being required to perform particular work tasks assigned by their employers, or to being required to perform them in particular ways? The national reports discussed relate to Japan, the United States, Germany, Israel and Spain. The paper argues that cultural factors can influence not only law’s response but also the ways in which the issue of conscience is understood, contextualised and legally presented.

Cotterrell R. Conscientious objection to assigned work tasks: A comment on relations of law and culture. Queen Mary University of London, School of Law Legal Studies Research Paper No. 104/2012. Comparative Labor Law & Policy Journal, volume 31 (2010), 511-22

Physicians’ “right of conscience”- beyond politics

Asgad Gold

Extract
Introduction: Recently, the discussion regarding the physicians’ “Right of Conscience” (ROC) has been on the rise. This issue is often confined to the “reproductive health” arena (abortions, birth control, morning-after pills, fertility treatments, etc.) within the political context. The recent dispute of the Bush-Obama administrations regarding the legal protections of health workers who refuse to provide care that violates their personal beliefs is an example of the political aspects of this dispute.

Gold A. Physicians’ “right of conscience”- beyond politics. J Law Med Ethics. 2010 Spring;38(1):134-42. PubMed PMID: 20446991.

(Editorial) Conscientious objection in developing countries

Debora Dinez

Extract
The administration of former President George W. Bush and the subsequent revival of the abortion disputes in the United States have put the ethical challenges of conscientious objection in the spotlight in many international journals on bioethics in the last decade. . . . In the last few years some clear administrative guidelines have been drawn up, considering the institutional realities of developed countries, most of them with private healthcare systems. These include rules that the objection or refusal is an individual right and not an institutional right and healthcare providers have a duty to refer a woman to a similar health care service provider.

I would suggest that this is not the reality for many developing countries.

Diniz D. Conscientious objection in developing countries. Dev World Bioeth. 2010 Apr;10(1):ii. PubMed PMID: 20433463.

Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation

Joanna K Sax

Abstract
Legal scholarship in this area debates the fairness of conscience clauses. The debate appears to be at an impasse and is, in any event, unsatisfying. This Article proposes the application of welfare economics as the guiding principle in policy determinations and presents an alternative approach to the current debate surrounding pharmacist conscience clauses. The theoretical application of welfare economics demonstrates that pharmacist conscience clause legislation may not maximize individuals’ well-being. A common law approach, whereby a pharmacist may be held liable for refusing to fill a prescription for a non-medical reason, most likely can reach the appropriate balance to minimize total social costs. If however, states refuse to repeal pharmacist conscience clause legislation or states continue to pass pharmacist conscience clause legislation, duty-to-fill legislation, which places a statutory duty on pharmacies or pharmacists to fill valid prescriptions, may be needed. If this is the case, duty-to-fill legislation should include a provision that pharmacies cannot refuse to carry any FDA approved medication due to any religious or personal objections. Importantly, duty-to-fill legislation does not alter any of the professional responsibilities and gatekeeper functions of a pharmacist. The pharmacist’s job to ensure the prescription is valid and legal remains. The expertise required for drug allergies or interactions is still a critical component of the profession. Interesting to note in this debate is that the word science is within the word conscience.

Sax JK. Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation. Maine Law Review. 2010 Feb 17;63(1):90-129.

Medical Conscience and the Policing of Parenthood

Richard F Storrow

William & Mary Journal of Women and the Law

Abstract
As state and local anti-discrimination provisions become more and more comprehensive, physicians who refuse to treat patients for reasons of sexual orientation or marital status are beginning to face legal liability. Increasingly, physicians are invoking codes of medical ethics alongside more familiar constitutional law claims in support of their claim to insulation from legal liability. This Article explores what medical ethics has to say about physicians who, for sincerely held religious reasons, refuse to treat patients for reasons of sexual orientation or marital status. The issue is explored through the lens of a case recently decided by the California Supreme Court in which infertility physicians refused to help a lesbian couple have a child with the aid of artificial insemination. Through a close examination of the provisions of medical ethics codes and the arguments based on those codes raised in the California case, this Article concludes that medical societies should not support carving out an exception from anti-discrimination laws for physicians who, for reasons of religious conscience, want to express their class-based biases in the clinic.

Storrow RF. Medical Conscience and the Policing of Parenthood. William & Mary J Women Law. 2010;16(2):369-393.

Legal Euthanasia in Belgium: Characteristics of All Reported Euthanasia Cases

Tinne Smets, Johan Bilsen, Joachim Cohen, Mette L Rurup, Luc Deliens

Abstract
Objectives: To study the reported medical practice of euthanasia in Belgium since implementation of the euthanasia law. . .

Research Design: Analysis of the anonymous database of all euthanasia cases reported to the Federal Control and Evaluation Committee Euthanasia.

Subjects: All euthanasia cases reported by physicians for review between implementation of the euthanasia law on September 22nd, 2002 and December 31, 2007 (n = 1917).

Measures: Frequency of reported euthanasia cases, characteristics of patients and the decision for euthanasia, drugs used in euthanasia cases, and trends in reported cases over time.

Results: The number of reported euthanasia cases increased every year from 0.23% of all deaths in 2002 to 0.49% in 2007. Compared with all deaths in the population, patients who died by euthanasia were more often younger (82.1% of patients who received euthanasia compared with 49.8% of all deaths were younger than 80, P < 0.001), men (52.7% vs. 49.5%, P = 0.005), cancer patients (82.5% vs. 23.5%, P < 0.001), and more often died at home (42.2% vs. 22.4%, P < 0.001). Euthanasia was most often performed with a barbiturate, sometimes in combination with neuromuscular relaxants (92.4%) and seldom with morphine (0.9%). In almost all patients, unbearable physical (95.6%) and/or psychological suffering (68%) were reported. A small minority of cases (6.6%) concerned nonterminal patients, mainly suffering from neuromuscular diseases.

Conclusions: The frequency of reported euthanasia cases has increased every year since legalization. Euthanasia is most often chosen as a last resort at the end of life by younger patients, patients with cancer, and seldom by nonterminal patients.

Smets T, Bilsen J, Cohen J, Rurup ML, Deliens L. Legal Euthanasia in Belgium: Characteristics of All Reported Euthanasia Cases. Med Care. 2010 Feb;47(12).

(Thesis) Triangulation of Rights, Balancing of Interests: Exploring the Tensions between Freedom of Conscience and Freedom of Religion in Comparative Constitutional Law

Dia Dabby

Abstract
Freedom of religion, often recognised as “first freedom” in numerous legal traditions, also reflects the different conceptions of the place of the individual and the collectivity in society. Our study will analyse the Canadian, American and European constitutional models of freedom of religion and conscience. In a first chapter, we will examine the theoretical conceptions of religion in the social sciences as well as from the perspectives of legal approaches in order to discern the manner in which religion is conceived and to better understand its various influences. In this way, we hope to enhance our understanding of both identity and to a greater extent, culture, both in and out of law. In the second and third chapters, we will attempt to characterise the relationship between freedom of conscience and freedom of religion in Canada, as well as identify unresolved issues. In the final chapter, we will observe how freedom of conscience has been interpreted in the American legal setting as well as in the European Union, by way of the European Court of Human Rights (ECtHR). We hypothesise that a better understanding of the relationship between the freedoms of conscience and religion can be arrived at by clarifying the theoretical conceptions of religion and conscience in comparative constitutional law.

Dabby D. (Thesis) Triangulation of Rights, Balancing of Interests: Exploring the Tensions between Freedom of Conscience and Freedom of Religion in Comparative Constitutional Law. University of Montreal. 2010.

First and second things, and the operations of conscience in science

Bruce G Charlton

Abstract
Why is modern science less efficient than it used to be, why has revolutionary science declined, and why has science become so dishonest? One plausible explanation behind these observations comes from an essay First and second things published by CS Lewis. First Things are the goals that are given priority as the primary and ultimate aim in life. Second Things are subordinate goals or aims – which are justified in terms of the extent to which they assist in pursuing First Things. The classic First Thing in human society is some kind of religious or philosophical world view. Lewis regarded it as a ‘universal law’ that the pursuit of a Second Thing as if it was a First Thing led inevitably to the loss of that Second Thing: ‘You can’t get second things by putting them first; you can get second things only by putting first things first’. I would argue that the pursuit of science as a primary value will lead to the loss of science, because science is properly a Second Thing. Because when science is conceptualized as a First Thing the bottom-line or operational definition of ‘correct behaviour’ is approval and high status within the scientific community. However, this does nothing whatsoever to prevent science drifting-away from its proper function; and once science has drifted then the prevailing peer consensus will tend to maintain this state of corruption. I am saying that science is a Second Thing, and ought to be subordinate to the First Thing of transcendental truth. Truth impinges on scientific practice in the form of individual conscience (noting that, of course, the strength and validity of conscience varies between scientists). When the senior scientists, whose role is to uphold standards, fail to posses or respond-to informed conscience, science will inevitably go rotten from the head downwards. What, then, motivates a scientist to act upon conscience? I believe it requires a fundamental conviction of the reality and importance of truth as an essential part of the basic purpose and meaning of life. Without some such bedrock moral underpinning, there is little possibility that individual scientific conscience would ever have a chance of holding-out against an insidious drift toward corruption enforced by peer consensus.

Charlton BG. First and second things, and the operations of conscience in science. Med Hypotheses. 2010 Jan;74(1):1-3.

A nursing manifesto: an emancipatory call for knowledge development, conscience, and praxis

Paula N Kagan, Marlaine C Smith, W Richard Cowling, Peggy L Chinn

Abstract
The purpose of this paper is to present the theoretical and philosophical assumptions of the Nursing Manifesto, written by three activist scholars whose objective was to promote emancipatory nursing research, practice , and education within the dialogue and praxis of social justice. Inspired by discussions with a number of nurse philosophers at the 2008 Knowledge Conference in Boston, two of the original Manifesto authors and two colleagues discussed the need to explicate emancipatory knowing as it emerged from the Manifesto. Our analysis yielded an epistemological framework based on liberation principles to advance praxis in the discipline of nursing. This paper adds to what is already known on this topic, as there is not an explicit contribution to the literature of this specific Manifesto, its significance, and utility for the discipline. While each of us have written on emancipatory knowing and social justice in a variety of works, it is in this article that we identify, as a unit of knowledge production and as a direction towards praxis, a set of critical values that arose from the emancipatory conscienceness and intention seen in the framework of the Nursing Manifesto.

Kagan PN, Smith MC, Cowling WR, Chinn PL. A nursing manifesto: an emancipatory call for knowledge development, conscience, and praxis. Nurs Philos. 2010 Jan;11(1)67-84.