Is a doctor’s conscience mere personal preference?

Imagine that paediatricians are asked by the parents of a child with severe developmental disabilities to perform a hysterectomy and mastectomy on their daughter and give her hormones to restrict her growth. Imagine that, though the paediatricians sympathetically appreciate the motivation of the parents for this request – that restricting her growth will enable them to continue to care for her themselves, they think that they cannot do these things to the child. Should we compel them to provide the procedures or accommodate their conscientious judgment?

 Or again. Imagine that a doctor is willing to provide a first trimester termination but is reluctant to terminate a pregnancy in the third trimester. Should we compel him to provide the procedure or accommodate his conscientious judgment?

The general question to be considered is whether it is ever justifiable to compel performance by a doctor in violation of his or her conscience. Or, to put the question another way: what scope – if any at all -- should be given to conscientious judgment in healthcare?

Though there is now an enormous literature on the subject, most views sit on the range between, on the one hand, “there ought to be little or no scope for conscientious judgment in healthcare” and, on the other, “there ought to be wide scope for conscientious judgment in healthcare”. Classic expressions of these two views were given some time ago by Julian Savulescu and Daniel Sulmasy respectively. Though there are now other contributors to the discussion, and other points of view, a grasp of the early claims of these two doctor-philosophers will orient a newcomer to the shape of the debate.

Savulescu: doctor have no right of conscientious objection

Savulescu argues that

“[a} doctor’s conscience has little place in the delivery of modern medical care. What should be provided to patients is defined by the law and consideration of the just distribution of finite medical resources, which requires a reasonable conception of the patient’s good and the patient’s informed desires. If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.”

This view was further elaborated in a “consensus statement” adopted by a group of philosophers and bioethicists (Savulescu among them) who met at the Brocher Institute in Geneva in 2016. According to them,

“[h]ealthcare practitioners’ primary obligations are towards their patients, not towards their own personal conscience. When the patient’s well-being (or best interests, or health) is at stake, healthcare practitioners’ professional obligations should normally take priority over their personal moral or religious views.

When practitioners have a conscientious objection, they ought to refer their patients to another practitioner who is willing to perform the treatment, and in emergency situations perform the treatment themselves. When they have a conscientious objection to providing treatment, they should be required to explain themselves. The burden of proof of the reasonability and sincerity of the objection should be on the practitioner. Reasons offered could be assessed by tribunals who could test their reasonability and sincerity. Hiring authorities should generally be allowed to make hiring decisions on the basis of whether the possible employees are willing to perform procedures to which others have a conscientious objection.

Practitioners who are exempted from performing procedures on conscientious grounds should be required to compensate society for their failure to fulfil their professional obligations. Medical students should not be exempted from learning how to perform basic procedures they consider to be morally wrong. Practitioners should be educated to identify the basis of their objections and to reflect on the influence of cognitive bias in their objections.

Savulescu gives four reasons for the view that there should be little scope for conscientious judgment in healthcare. Respect for conscientious refusal is inefficient because it causes patients to waste time, energy and money; it is inequitable because some patients, less informed of their entitlements, will fail to receive a service which they should have received; it is inconsistent with other practices in healthcare where doctors are not permitted to act on their own views; and it is unprofessional because

… to be a doctor is to be willing and able to offer appropriate medical treatments that are legal, beneficial, desired by the patient, and part of a just health care system”.

Savulescu’s practical recommendation is straightforward. If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.  

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Sulmasy: doctors should not be compelled to act against conscience

Sulmasy defends a very different view. He argues that “… one should not readily empower the state to compel its physicians to alienate themselves from their deepest moral convictions”.

Rather, we should exhaust every available alternative before requiring a doctor to act against his or her deeply held, self-identifying moral beliefs. Without claiming that conscientious objections can never be trumped by other considerations, he recommends that we set a very high bar before compelling performance in violation of conscience.

Sulmasy’s view is grounded in his account of the nature, and (from which account it follows) the primacy, of conscience itself. Conscience, he says, is the disposition to act in accordance with a commitment to uphold one’s deepest, self-identifying moral beliefs. It is an expression of moral agency. Of course, a person’s conscience can err, so acknowledging its primacy does not imply a belief in its infallibility. We can expect general agreement about some moral items of moral knowledge because they are so obviously true (for example, “it is wrong to inflict unnecessary pain”). But given the imperfect nature of our moral knowledge and reasoning, moral disagreements between us are inevitable. Thus, because we are all moral agents, we owe each other mutual respect, both in the practice of healthcare and in the rest of life.

How, then, does Sulmasy think we should go about determining whether it is legitimate for a state, a profession or an institution to compel performance by a doctor against his or her conscientious judgment?

Sulmasy suggests that we decide the matter, in particular circumstances, by asking three questions about the practice – that is, the action or the refraining from action - for which a doctor seeks tolerance.

First, we should consider whether the doctor’s practice undermines or contradicts the principle of tolerance itself. If it does, then the practice does not deserve tolerance. So, for example, if a doctor were to refuse to treat a Jehovah’s Witness for pneumonia simply because of the doctor is hostile to people of that religious persuasion, her refusal would hardly deserve tolerance. But if she refused to operate on a patient because the patient would not allow blood transfusions, her refusal would deserve our tolerance.

Second, we should consider whether the doctor’s practice entails a substantial risk of serious illness, injury, or death for those who do not share the belief that is said to justify the practice. A serious risk of injury or death to a patient would constitute grounds for compelling the doctor’s performance. But (and here’s the nub of the current controversy) inconvenience, psychological distress or mild symptoms on the part of a person seeking a service would not constitute grounds for compelling the doctor’s performance. For “mutual respect for conscience demands that we ought to be willing to be inconvenienced, if necessary, for each other’s sake.”

Third, we should consider whether the practice for which the doctor seeks tolerance is an action or a refraining from action. Greater moral justification should be needed to compel a doctor to perform an action than is, in general, required to compel a doctor to refrain from an action. No one would object if an institution compelled a doctor to refrain from proselytizing her patients. But a much stronger ethical justification should be needed if an institution wanted to compel a doctor to perform a procedure to which she had a conscientious objection.

It is clear that there is some common ground between the two positions, in particular that an emergency which threatens a serious risk of injury or death to a patient would constitute grounds for compelling a doctor’s performance. It is also clear that there are profound differences between the two positions, differences explained or at least reinforced by differing views about (on the one hand) the nature and goals of medical practice and (on the other) about the nature and modus operandi of conscience itself. Savulescu’s view treats conscience as a mere personal preference. Sulmasy’s view treats conscience as a self-identifying commitment to personal integrity.

Since doctors are increasingly being asked to intervene in situations which have little or nothing to do with treating disease, the profession, and indeed the wider society, needs to work out a principled way of resolving disputes about the proper scope of, and proper limits to, respect for conscientious judgment in healthcare.

My hunch is that we will not be able to do this unless we clarify three things.

First, the exercise of conscience is not to be understood as an expression of a mere personal preference (like a taste in food or wine): rather it is a matter of integrity, that is, a serious self-identifying moral commitment.

Second, the role of doctor is not to provide whatever the patient (“or consumer”) wants; rather it is to (offer to) treat injury or disease.

Third, in a well-ordered society the state’s authority over doctors does not extend to compelling them to violate their consciences: on this particular matter, it is to preserve that kind of individual liberty which is at the heart of everyone’s flourishing.  


Bernadette Tobin PhD AO is Director of the Plunkett Centre for Ethics, a centre of Australian Catholic University with six participating partners: St Vincent’s Public Sydney, St Vincent’s Private Sydney, Mater Hospital Sydney, Calvary Healthcare, Mercy Hospital Melbourne and Cabrini Hospital Melbourne. Republished from Bioethics Outlook with permission.  

Image credits: Bigstock 


 

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