Journals Archives - Page 3 of 99 - Protection of Conscience Project Library

Conscientious objection to abortion: Why it should be a specified legal right for doctors in South Korea

Claire Junga Kim

Abstract
Background: In 2019, the Constitutional Court of South Korea ruled that the anti-abortion provisions in the Criminal Act, which criminalize abortion, do not conform to the Constitution. This decision will lead to a total reversal of doctors’ legal duty from the obligation to refuse abortion services to their requirement to provide them, given the Medical Service Act that states that a doctor may not refuse a request for treatment or assistance in childbirth. I argue, confined to abortion services in Korea that will take place in the near future, that doctors should be granted the legal right to exercise conscientious objection to abortion.

Main text: Considering that doctors in Korea have been ethically and legally obligated to refrain from abortions for many years, imposing a universal legal duty to provide abortions that does not allow exception may endanger the moral integrity of individual doctors who chose a career when abortion was illegal. The universal imposition of such a duty may result in repudiation of doctors as moral agents and damage trust in doctors that forms the basis of medical professionalism. Even if conscientious objection to abortion is granted as a legal right, most patients would experience no impediment to receiving abortion services because the healthcare environment of Korea provides options in which patients can choose their doctors based on prior information, there are many doctors who would be willing to provide an abortion, and Korea is a relatively small country. Finally, the responsibility to effectively balance and guarantee the respective rights of the two agents involved in abortion, the doctor and the patient, should be imposed on the government rather than individual doctors. This assertion is based on the government’s past behaviours, the nature of its relationship with doctors, and the capacity it has to satisfy both doctors’ right to conscientious objection and patients’ right to legal medical services.

Conclusion: With regard to abortion services that will be sought in the near future, doctors should be granted the legal right to exercise conscientious objection based on the importance of doctor’s moral integrity, lack of impediment to patients, and government responsibility.

Kim CJ. Conscientious objection to abortion: Why it should be a specified legal right for doctors in South Korea. BMC Med Ethics Aug 06. 2020;21(70) .

The Conscience Defense to Malpractice

Nadia N Sawicki

Abstract
This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate–that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.

This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute–providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.

Sawicki NN. The Conscience Defense to Malpractice. Calif Law Rev. 2020;108(1255):1255-1316.

Beyond Money: Conscientious Objection in Medicine as a Conflict of Interests

Alberto Giubilini, Julian Savulescu

Abstract
Conflict of interests (COIs) in medicine are typically taken to be financial in nature: it is often assumed that a COI occurs when a healthcare practitioner’s financial interest conflicts with patients’ interests, public health interests, or professional obligations more generally. Even when non-financial COIs are acknowledged, ethical concerns are almost exclusively reserved for financial COIs. However, the notion of “interests” cannot be reduced to its financial component. Individuals in general, and medical professionals in particular, have different types of interests, many of which are non-financial in nature but can still conflict with professional obligations. The debate about healthcare delivery has largely overlooked this broader notion of interests. Here, we will focus on health practitioners’ moral or religious values as particular types of personal interests involved in healthcare delivery that can generate COIs and on conscientious objection in healthcare as the expression of a particular type of COI. We argue that, in the healthcare context, the COIs generated by interests of conscience can be as ethically problematic, and therefore should be treated in the same way, as financial COIs.

Giubilini A, Savulescu J. Beyond Money: Conscientious Objection in Medicine as a Conflict of Interests. Bioethical Inquiry 17, 229–243 (2020). https://doi.org/10.1007/s11673-020-09976-9

Beyond Money: Conscientious Objection in Medicine as a Conflict of Interests

Alberto Giubilini, Julian Savulescu

Abstract
Conflict of interests (COIs) in medicine are typically taken to be financial in nature: it is often assumed that a COI occurs when a healthcare practitioner’s financial interest conflicts with patients’ interests, public health interests, or professional obligations more generally. Even when non-financial COIs are acknowledged, ethical concerns are almost exclusively reserved for financial COIs. However, the notion of “interests” cannot be reduced to its financial component. Individuals in general, and medical professionals in particular, have different types of interests, many of which are non-financial in nature but can still conflict with professional obligations. The debate about healthcare delivery has largely overlooked this broader notion of interests. Here, we will focus on health practitioners’ moral or religious values as particular types of personal interests involved in healthcare delivery that can generate COIs and on conscientious objection in healthcare as the expression of a particular type of COI. We argue that, in the healthcare context, the COIs generated by interests of conscience can be as ethically problematic, and therefore should be treated in the same way, as financial COIs.

Giubilini A, Savulescu J. Beyond Money: Conscientious Objection in Medicine as a Conflict of Interests. J Bioethic Inq. 2020 May 12;17(2):229-243.

Hospital Mergers and Conscience-Based Objections — Growing Threats to Access and Quality of Care

Ian D Wolfe, Thaddeus Mason Pope

New England Journal of Medicine, NEJM — New England Journal of Medicine

Extract
Institutional conscience–based objection (in which a hospital’s religious affiliation or mission influences the services it provides) differs materially from the more familiar concept of individual conscience–based objection.

Wolfe ID, Pope TM. Hospital Mergers and Conscience-Based Objections — Growing Threats to Access and Quality of Care. N Engl J Med. 2020 Apr 09;382(15):1388-1389.

The “Normalization” of Euthanasia in Canada: the Cautionary Tale Continues

Leonie Herx, Margaret Cottle, John Scott

Extract
This paper will balance recent portrayals in the popular and medical media that imply only a positive impact as a result of the introduction of euthanasia into Canada’s health system [3–4]. Evidence will be presented to demonstrate that there are significant negative and dangerous consequences of this radical shift for medicine, and particularly for palliative medicine. These include the widening and loosening of already ambiguous eligibility criteria, the lack of adequate and appropriate safeguards, the erosion of conscience protection for health care professionals, and the failure of adequate over- sight, review and prosecution for non-compliance with the legislation. Indeed, what we have seen over the past four years is that “the slope has in fact proved every bit as slippery as the critics had warned” . . . Euthanasia is not the panacea that proponents promise. Its legalization and subsequent rapid normalization have had serious negative effects on Canadian medicine and on Canadian society as a whole. We urge the WMA and our colleagues around the world to look beyond the simplistic media reports and to monitor developments in Canada carefully and wisely before making any changes in their own country’s legal frame- work for medical practice.

Herx L, Cottle M, Scott J. The “Normalization” of Euthanasia in Canada: the Cautionary Tale Continues. World Medical Journal020. 2020;66(2):28-37.

Which Legal Approaches Help Limit Harms to Patients From Clinicians’ Conscience-Based Refusals?

Rachel Kogan, Katherine L Kraschel, Claudia E Haupt

American Medical Association Journal of Ethics

Abstract
This article canvasses laws protecting clinicians’ conscience and focuses on dilemmas that occur when a clinician refuses to perform a procedure consistent with the standard of care. In particular, the article focuses on patients’ experience with a conscientiously objecting clinician at a secular institution, where patients are least likely to expect conscience-based care restrictions. After reviewing existing laws that protect clinicians’ conscience, the article discusses limited legal remedies available to patients.

Kogan R, Kraschel KL, Haupt CE. Which Legal Approaches Help Limit Harms to Patients From Clinicians’ Conscience-Based Refusals? AMA J Ethics. 2020 Mar;22(3):209-216.

(Correspondence) Organ Donation after Medical Assistance in Dying — Canada’s First Cases

Ian M. Ball, Andrew Healey, Sean Keenan, Fran Priestap, John Basmaji, ,Kimia Honarmand, ,Jeanna Parsons Leigh, ,Sam Shemie, ,Prosanto Chaudhury,,Jeffrey M Singh, Jeffrey Zaltzman,Stephen Beed, Matthew Weiss

Extract
The provision of organ donation after medically assisted euthanasia involves unusual challenges, including first-person direct consent, navigation of a new legislative landscape, and incorporation of the legislated requirements of euthanasia into the donation process. Ethical issues involving the well-being of health care workers and conscientious objection have also been raised.

Medical assistance in dying followed by organ donation is new to North America. It is evolving, and if offered to potential donors it provides them with the opportunity to fulfill their dying wishes. Secondarily, this process may make more organs available to patients on transplant waiting lists. There is substantial room for enhanced education of both the public and health care workers and for the evolution of clinical practice. National level, prospective data will be necessary to assess this evolving area of care.

Ball IM, Healey A, Keenan S, Priestap F, Basmaji J, Honarmand K et al. Organ Donation after Medical Assistance in Dying — Canada’s First Cases. N Engl J Med. 2020;382(6):576-577.

Conscientious objection and moral distress: a relational ethics case study of MAiD in Canada

Mary Kathleen Deutscher Heilman, Tracy J. Trothen

Abstract
Conscientious objection has become a divisive topic in recent bioethics publications. Discussion has tended to frame the issue in terms of the rights of the healthcare professional versus the rights of the patient. However, a rights-based approach neglects the relational nature of conscience, and the impact that violating one’s conscience has on the care one provides. Using medical assistance in dying as a case study, we suggest that what has been lacking in the discussion of conscientious objection thus far is a recognition and prioritising of the relational nature of ethical decision-making in healthcare and the negative consequences of moral distress that occur when healthcare professionals find themselves in situations in which they feel they cannot provide what they consider to be excellent care. We propose that policies that respect the relational conscience could benefit our healthcare institutions by minimising the negative impact of moral distress, improving communication among team members and fostering a culture of ethical awareness. Constructive responses to moral distress including relational cultivation of moral resilience are urged.

Heilman MKD, Trothen TJ. Conscientious objection and moral distress: a relational ethics case study of MAiD in Canada. J Med Ethics. 2020;46(2):123-127. doi:10.1136/medethics-2019-105855

(News) Woman suing two pharmacies after being denied emergency contraception

The US case brings to light concerns around conscientious objection at a time when a federal religious discrimination bill is being debated in Australia

Sheshtyn Paola

Exract
A woman has filed a lawsuit against a Thrifty White Pharmacy and a CVS Pharmacy in Minnesota in the US, alleging the two pharmacies illegally kept her from accessing emergency contraception.

Andrea Anderson, a 39-year-old mother of five, says she asked the pharmacist at her drugstore in Minnesota more than once why he couldn’t fill her prescription for emergency contraception, according to the Star Tribune.

“I then realised what was happening: he was refusing to fill my prescription for emergency contraception because he did not believe in it,” Ms Anderson said on Tuesday.

Paola S. Woman suing two pharmacies after being denied emergency contraception. Australian Pharm J [Internet]. 2019 Dec 12.