Law Archives - Page 27 of 39 - Protection of Conscience Project Library

Médecine et droit: le devoir de conscience

Christian Byk

Abstract
The powers of medicine, as well as the faith put into it, endows the doctor a particular place within our social organisation. Possessor of its knowledge on the actions on the bodies, its power interferes with that of the society elites which imposes limits as well as obligations to profit the search of individual and collective well being. The doctor, magician or therapist, incites fear from the moment he attributes his powers only on the basis of his knowledge. We therefore have to consider him on the same level as the rest of society and while recognizing the special role of his profession, make sure that he is aware that he is not above the law, that he is linked to each of his patients due to the trust that they place in him. But this contract between two individuals is as well, and increasingly a social contract which places the medical practice in the complex game of social relations, even if at times it is seen on a more economic level. And that is why it is important to insert another social limit that would remind the doctor that his interventions affect the human body, and therefore the respect of a person and her identity and integrity. A medical science that is too proud or paternalistic, cannot keep to itself the mastery of new biomedical technology. It must be shared with his patients who now have a new role in healthcare, as holders of subjective rights. Should not the new “drama” of medical science, rather than imposing limits on some promoters of “promethenne” médecine, be that of reinforcing the obligations doctors have in general to serve their purpose towards social, collective and individual means that so often don’t inspire the trust that should be linked to conscience? Slave of a collective healthcare system, the doctor should still feel useful if his freedom to serve those that he helps is preserved. This does not necessarily mean that his participation in establishing certain social norms is impossible, however, it requires a definition of those issues that are relevant to the medical function. This search towards equilibrium, however ambiguous, and some even say impossible, appears to be even more acute in the sphere of biomedical practices. The monopoly conserved—and even reinforced—of the physician to protect the individuals at the beginning or at the end of their life, is added to a doctor’s burden, to a certain extent, of the weight of all the individual’s desires, of contradictory interests, and desire to do all that is possible in a world with real limitation. We therefore have to admit that his conscience can allow him to decline care to the patients that require it when he cannot or does not want to change their wishes. But even by acting this way, and that is why the clause of conscience distinguishes itself from contractual liberty, the doctor who refuses the administration of care must continue to have compassion towards his patients. So we can now wager, based on what we have just stated, that the medical practice will be a contributing factor in making law conform to the role that Aguesseau wanted for justice: “Juger humainement des choses humaines”.

Byk C. Médecine et droit: le devoir de conscience. Revue Generale de Droit. 1996;27(323-348.

Clinical Practice Guidelines and the Law

Eike-Henner Kluge

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Journal summary
With physicians in Canada under increasing threat of malpractice litigation, it has been suggested that adopting clinical practice guidelines (CPGs) as standards of care would free doctors from the fear of litigation initiated by dissatisfied patients. However, ethicist Eike-Henner Kluge argues that CPGs can only be considered general indicators of standards of care.

Kluge E-H. Clinical Practice Guidelines and the Law. Can Med Assoc J. 1996;155(5):574-576.

Beyond autonomy: coercion and morality in clinical relationships

Maxwell Gregg Bloche

Extract
This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice. The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice.

Bloche MG. Beyond autonomy: coercion and morality in clinical relationships. Health Matrix J Law Med 1996;6(2):229-304.

(Editorial) A de-facto end to abortion in USA?

The Lancet

Extract
these Bills (one in the House of Representatives and a less wild version in the Senate) are unnecessary and deceptive. . . .The Bills would allow residents and programmes to abstain from abortions on any grounds, not just religious or moral. . . .So what is their objective? It is the de facto ending of abortion in the USA. By allowing more residents and more programmes to opt out of abortion training, safe termination of pregnancy in America will become even more difficult to obtain. Already, the number of competently trained graduates has fallen dramatically. Access to doctors and clinics has shrunk, and too many American women wanting an abortion already face a long and sometimes dangerous search for help. This is an attack on women’s choices and an interference in medical education. If it passes Congress, President Clinton should veto it immediately.

The Lancet. (Editorial) A de-facto end to abortion in USA? The Lancet. 1996;347(9008):1055.

Selective conscientious objection in the United States

Joseph E Capizzi

Extract
It is this author’s position that the concerns of the selective conscientious objector ought to be legally recognized, not because an exemption is granted to the pacifist, but because it is the right thing to do in a democratic society that is respectful of its members’ religious commitments. This is not proposed as yet another right to add to the ever-growing list of individual rights in our society. The point of this essay is not to argue implicitly in defense of liberalism by arguing explicitly for a right deriving therefrom. Rather, it is proposed that the recognition of selective conscientious objection is necessary due to the presence of two existent legal concepts: the free exercise of religion, already extended to pacifists, and the right to confessional neutrality. “Compelling state interests” simply do not, in point of fact, override confessional neutrality. The government’s arguments about the feasibility of determining sincere selective objectors, about the drain of manpower that it claims would occur, and that the selective objector is merely a “political” dissenter and as such should not be granted this privilege, are not convincing.

Capizzi JE. Selective conscientious objection in the United States. J Church State. 1996 Spring;38(2):339-363.

The women’s conference: where aspirations and realities met

Jeanette H Johnson, Wendy Turnbull

Abstract
PIP: This article is a reflection on the Fourth World Conference on Women in Beijing in September 1995, including its preparatory meetings. Delegates from 187 nations negotiated and decided on the disputed passages of the draft Platform of Action, which comprised 40% of the 150 page document. The atmosphere prior and during the conference was not peaceful. The UN and China disputed over the location of the nongovernmental organizations’ (NGO) forum that took place at the same time of the conference. The US and Chinese governments squabbled about China’s detention of a Chinese-American human rights activist. The US First Lady attended the conference and the NGO forum, promoting human rights. Most delegates had decided that this conference would not be a retreat from the Cairo conference. In comparison to Cairo, the Vatican delegation had toned down its opposition. US based antiabortion groups and conservative women’s groups arrived in greater numbers in Beijing than in Cairo, in hopes to reverse actions taken in Cairo. They had few victories. A contentious issue was parental rights and responsibilities, specifically adolescents’ access to confidential health services. Compromise wording was worked out in two paragraphs. All other references to parental rights were deleted or there was a reference to the compromise wording. The Beijing platform was the first universal document recognizing the right of a woman to say no to sexual intercourse. The references in the Beijing document recognizing sexual rights as human rights were a major accomplishment. Debates over the issue of abortion took place: the proposed conscience clause and a call for the review of laws containing punitive measures against women who have had an illegal abortion. The vocal delegates from developing countries are silencing the accusation that radical Western women are thrusting women’s rights on the rest of the world.

Johnson JH, Turnbull W. The women’s conference: where aspirations and realities met. Fam Plann Perspect. 1995 Dec;21(4):155-159.

Pharmaceutically assisted death and the pharmacist’s right of conscience

William L Allen, David B Brushwood

Extract
In this article, we describe the pharmacist’s potential involvement in what has been referred to as “physician assisted suicide”. We suggest that when a physician prescribes a medication for the purpose of terminating a patient’s life, and when that prescription is presented to a pharmacist for filling, a moral dilemma may exist. The basis of the dilemma is the choice a pharmacist may be required to make between the duty to fill a legal prescription for a medication that is deemed appropriate by both the prescriber and the patient, and the duty to adhere to one’s own belief that medication should not be used to end life. We contend that in filling a prescription, especially given the recent advances in pharmacy practice, a pharmacist is no mere bystander in drug therapy. Rather, the pharmacist is an active participant whose values, attitudes, and beliefs should be given consideration.

Allen WL, Brushwood DB. Pharmaceutically assisted death and the pharmacist’s right of conscience. J Pharm Law. 1996;5(1):1-18

The Right to Procreate: When Rights Claims Have Gone Wrong

Laura Shauuer

Abstract
Debates regarding the development of new reproductive technologies (NRTs), funding for infertility treatments, and non-medical criteria for access to infertility treatments frequently invoke “rights to reproduce” or “procreative rights”. The claim of this right – literally the right to have children – is not the same thing as many other “reproductive rights” that are invoked in contraception, abortion, and pregnancy management discussions.

The author argues that the claim of a right to bear or beget children, which may in turn support research into NRTs and then funding and access claims, is not justified. Framing procreative decisions in terms of rights claims is a problematic ethical project, which in turn creates difficulties for the establishment of legal procreative rights. There are two critical problems: first, the distinction between positive (entitlement) and negative (liberty) rights claims leaves those requiring reproductive assistance in need of a different justification for their claims than those who need no help; second, a procreative right is generally claimed to be limited by the rights or interests of the future children, but a right of non-conception is an intemally contradictory concept.

The author then discusses variations of procreative rights claims, including claims of rights to enter reproductive contracts or to seek assistance, and other conceptual foundations for reproductive decisions. Thus, while reproductive rights are often helpful in protecting individuals and families from undue governmental intrusion, rights are shown to be a problematic, inadequate, and inappropriate framework to describe both the legal and moral status of claims for assisted procreation.

Shauuer L. The Right to Procreate: When Rights Claims Have Gone Wrong. McGill Law J. 1995 Aug;40(823-874.

(News) Murder-suicide involving BC doctor raises troubling questions about euthanasia

Valerie Wilson

Abstract
The deaths last September of a British Columbia physician and his wife have raised troubling questions about euthanasia and Alzheimer’s disease. Police described the deaths of Dr. Tom Powell and his wife Dr. Lorraine Miles, a retired dentist, as a murder-suicide. Friends of the couple wonder if more lenient laws concerning euthanasia and assisted suicide might have saved Miles’ life.

Wilson V. Murder-suicide involving BC doctor raises troubling questions about euthanasia. Can Med Ass J 1995 Jun 1; 152(11) 1855-1856.

Conflicts of Conscience: Hospice and Assisted Suicide

Courtney S Campbell, Jan Hare, Pam Matthews

Extract
Proposals to legalize assisted suicide challenge hospice’s identity and integrity. In the wake of Measure 16, Oregon hospice programs must develop practical policies to balance traditional commitments not to hasten death and not to abandon patients with dying patients’ legal right to request lethal prescriptions. . . . . .

Regardless of the path an individual hospice may follow,-it cannot avoid the uncharted and unknown territory of a law that legalizes a lethal prescription and a scheduled death for some terminally ill patients. Whether a hospice forges a path through the middle of this territory through full participation, skirts along its borders by forms of indirect participation, or creates a detour through abstention and nonparticipation, the nature and mission of hospice in Oregon will be irreversibly altered.

Campbell CS, Hare J, Matthews P. Conflicts of Conscience: Hospice and Assisted Suicide. Hastings Cent Rep. 1995 May;36-43.