Médecine et droit: le devoir de conscience

Christian Byk

Revue generale de droit
Revue generale de droit

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.