Protection of Conscience Project Library

Conscience and the way of medicine

Farr A Curlin, Christopher O Tollefsen

Abstract
Disputes about conscientious refusals reflect, at root, two rival accounts of what medicine is for and what physicians reasonably profess. On what we call the “provider of services model,” a practitioner of medicine is professionally obligated to provide interventions that patients request so long as the interventions are legal, feasible, and are consistent with well-being as the patient perceives it. On what we call the “Way of Medicine,” by contrast, a practitioner of medicine is professionally obligated to seek the patient’s health, objectively construed, and to refuse requests for interventions that contradict that profession. These two accounts coexist amicably so long as what patients want is for their practitioners to use their best judgment to pursue the patient’s health. But conscientious refusals expose the fact that the two accounts are ultimately irreconcilable. As such, the medical profession faces a choice: either suppress conscientious refusals, and so reify the provider of services model and demoralize medicine, or recover the Way of Medicine, and so allow physicians to refuse requests for any intervention that is not unequivocally required by the physician’s profession to preserve and restore the patient’s health.

Curlin FA, Tollefsen CO. Conscience and the way of medicine. Perspect Biol Med. 2019;62(3):560-575.

(Editor’s Introduction) Examining deeper questions posed by disputes about conscience in medicine

Farr A Curlin, Kevin Powell

Extract
As a whole, this collection of essays raises to the surface some of the key questions that underlie ongoing disputes about health-care practitioners refusing patients’ requests—namely, what is the conscience, and what is medicine? We hope that by foregrounding these questions and offering contrasting responses to them, this collection serves to bring greater clarity to ongoing disputes about what we might reasonably expect of physicians when patients request interventions that physicians do not believe they should provide.

Curlin FA, Powell K. Examining deeper questions posed by disputes about conscience in medicine. Perspect Biol Med. 2019;62(3):379-382.

Conscience, moral reasoning, and skepticism

Larry R Churchill

Abstract
There is much to admire in Lauris Kaldjian’s explication of conscience and its uses for medical practitioners. Yet his claim that conscience is the final and best assessment of moral judgments is flawed, because it diminishes the influence of moral reasoning that balances and often corrects conscience. Skepticism about conscientious judgments is an important feature of ethics. Kaldjian’s close linkage of conscience with moral integrity blunts the necessary recognition that one’s conscience can be mistaken. His defense of physician refusals to refer patients gives insufficient weight to the idea that patients’ actions in seeking services may also reflect conscientious judgments. Analyses of cases near the end of this essay present no problems with respecting physicians’ conscientious refusals to provide services themselves, but they also mostly leave moral room for physicians to make referrals. Examination of these cases suggests other ways to resolve moral conflicts than recourse to one’s conscience.

Churchill LR. Conscience, moral reasoning, and skepticism. Perspect Biol Med. 2019 Summer;62(3):519-526.

Legislating the Right-to-Die with Dignity in a Confucian Society-Taiwan’s Patient Right to Autonomy Act

Chih-Hsiung Chen

Hastings International and Comparative Law Review

Abstract
In Confucian societies, people tend to avoid the discussion on death matters, let alone making advance directives to reject life-sustaining treatments at the end of life. Taiwan might be a pioneer in legislating the right-to-die with dignity among Confucian countries. As early as 2000, the Hospice Palliative Care Act was declared in Taiwan, which give terminally-ill patients the options to forgo life-sustaining treatments. Furthermore, in 2016, Taiwan passed the Patient Right to Autonomy Act to enhance patients’ choice at the end of life and expanded the coverage to certain types of non-terminally ill patients. On the other hand, end-of-life issues in Japan are regulated mainly through courts’ judgments and medical societies’ guidelines. Korea passed a law to legalize passive euthanasia, which became effective in 2018, but only contains limits to terminally-ill patients.

This paper is divided into three sections. First, this paper analyzes the sociocultural emphasis on family unity in East Asia and attitudes toward death in East Asian cultures, and then the methods adopted in Japan and South Korea of solving related disputes through the judiciary or legislation are explained. Second, the paper describes the legislative background of the aforementioned two laws in Taiwan, including futile medical care, the denial of citizen autonomy with respect to serious injury and death by criminal law theory, the unwillingness of the judiciary to intervene, and disputes encountered at medical sites. Subsequently, we explain the primary content of these two laws, including patients’ rights to self-determination, the judgment procedures of medical institutions, and the operation of advance directives. Finally, this paper analyzes inadequacies in the Patient Right to Autonomy Act, including a lack of penalties, insufficiencies in medical institutions’ scope of duty of disclosure, and the lack of a settlement mechanism for individuals who have not yet established advance directives.

Chen C-H, Kao H-H, Tseng W-T, Tai Y-A. Legislating the Right-to-Die with Dignity in a Confucian Society-Taiwan’s Patient Right to Autonomy Act. Hastings Int Comp Law Rev. 2019;42(2):485-508. Available from:

Survival of Patients With Liver Transplants Donated After Euthanasia, Circulatory Death, or Brain Death at a Single Center in Belgium

Nicholas Gilbo, Ina Jochmans, Daniel Jacobs-Tulleneers-Thevissen, Albert Wolthuis, Mauricio Sainz-Barriga, Jacques Pirenne, Diethard Monbaliu

Journal of the American Medical Association

Extract
Transplantation of organs donated after euthanasia may help alleviate the critical organ shortage.¹ However, aside from preliminary data on lung transplantation,² data on graft and patient survival following transplantation of organs donated after euthanasia are unavailable. Because donation after euthanasia entails a period of detrimental warm ischemia that hampers graft survival, similar to donation after circulatory death,³ results after transplantation of this type of graft need to be carefully evaluated.

Gilbo N, Jochmans I, Jacobs-Tulleneers-Thevissen D, Wolthuis A, Sainz-Barriga M, Pirenne J, Monbaliu D. Survival of Patients With Liver Transplants Donated After Euthanasia, Circulatory Death, or Brain Death at a Single Center in Belgium. JAMA. 2019;322(1):78-80. doi:10.1001/jama.2019.6553

Medical referral for abortion and freedom of conscience in Australian law

Joanne Howe, Suzanne Le Mire

Abstract
This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

Howe J, Mire SL. Medical referral for abortion and freedom of conscience in Australian law. J Law Religion. 2019 Jul 1;34(1):85-112.

Medical Referral for Abortion and Freedom of Conscience in Australian Law

Joanne Howe, Suzanne Le Mire

Howe J, Le Mire S. Medical Referral for Abortion and Freedom of Conscience in Australian Law. J Law and Religion. 2019 Apr;34(1):85-112 DOI: https://doi.org/10.1017/jlr.2019.14 Published online by Cambridge University Press: 01 July 2019

The Truth Behind Conscientious Objection in Medicine

Nir Ben-Moshe

Abstract
Answers to the questions of what justifies conscientious objection in medicine in general and which specific objections should be respected have proven to be elusive. In this paper, I develop a new framework for conscientious objection in medicine that is based on the idea that conscience can express true moral claims. I draw on one of the historical roots, found in Adam Smith’s impartial spectator account, of the idea that an agent’s conscience can determine the correct moral norms, even if the agent’s society has endorsed different norms. In particular, I argue that when a medical professional is reasoning from the standpoint of an impartial spectator, his or her claims of conscience are true, or at least approximate moral truth to the greatest degree possible for creatures like us, and should thus be respected. In addition to providing a justification for conscientious objection in medicine by appealing to the potential truth of the objection, the account advances the debate regarding the integrity and toleration justifications for conscientious objection, since the standard of the impartial spectator specifies the boundaries of legitimate appeals to moral integrity and toleration. The impartial spectator also provides a standpoint of shared deliberation and public reasons, from which a conscientious objector can make their case in terms that other people who adopt this standpoint can and should accept, thus offering a standard fitting to liberal democracies.

Ben-Moshe N. The Truth Behind Conscientious Objection in Medicine. J Med Ethics. 2019;45(6):404-410.

(Thesis) The Legal Revolution Against the Accommodation of Religion: The Secular Age v. The Sexular Age

Barry W Bussey

Abstract
This is a study about the law’s accommodation of religious practice and the brewing revolution within the legal profession against that accommodation. The revolution is especially evident, though not exclusively so, in sexual equality claims vis-à-vis religion. Originally, the study asked, “Why has religion been given special status in the law?”and “Should that status continue?”As a result of intense, multiyear research, I have come to recognize that there is within the legal profession a strident movement to remove from the law the traditional accommodation of religion. To explain my findings, I have used the work of Thomas S. Kuhn1as a theoretical framework.

Keywords:

Bussey BW. (Thesis) The Legal Revolution Against the Accommodation of Religion: The Secular Age v. The Sexular Age. University of Leiden. 2019;. Available from: https://www.academia.edu/40452980/The_legal_revolution_against_the_accommodation_of_religion_the_secular_age_versus_the_sexular_age

Might there be a medical conscience

Nir Ben-Moshe

Abstract
I defend the feasibility of a medical conscience in the following sense: a medical professional can object to the prevailing medical norms because they are incorrect as medical norms. In other words, I provide an account of conscientious objection that makes use of the idea that the conscience can issue true normative claims, but the claims in question are claims about medical norms rather than about general moral norms. I further argue that in order for this line of reasoning to succeed, there needs to be an internal morality of medicine that determines what medical professionals ought to do qua medical professionals. I utilize a constructivist approach to the internal morality of medicine and argue that medical professionals can conscientiously object to providing treatment X, if providing treatment X is not in accordance with norms that would have been constructed, in light of the end of medicine, by the appropriate agents under the appropriate conditions.

Ben‐Moshe, N. Might there be a medical conscience? Bioethics. 2019; 33: 835– 841. https://doi.org/10.1111/bioe.12611