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THE RESPONSIBILITIES OF CONSCIENCE IN HEALTHCARE DECISIONS: MOVING TOWARDS A COLLABORATIVE FRAMEWORK

Published online by Cambridge University Press:  17 February 2020

Stephen W Smith Open the ORCID record for Stephen W Smith [Opens in a new window]
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Abstract

Claims of conscience are a substantial area of concern in relation to healthcare decisions but are often only considered in a limited context. Broadening our understanding of claims of conscience, however, might lead to claims that we are moving back towards a doctor-centred understanding of medical care. This article argues that we can allow claims of conscience without unduly penalising patients by focusing on the responsibilities that ought to attach to conscience claims. This article sets out three responsibilities – humility, universality and reciprocal respect – which ought to be part of any claim of conscience. The Charlie Gard case is then used as an example to explore the use of responsibilities. The article then moves to consider possible issues that arise from this view.

Keywords

claims of conscienceconscientious objectionhealthcare lawCharlie Gardresponsibilities of conscience
Type
Articles
Information
The Cambridge Law Journal , Volume 79 , Issue 1 , March 2020 , pp. 120 - 147
Copyright
Copyright © Cambridge Law Journal and Contributors 2020

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Footnotes

The author would like to thank Sara Fovargue, Clark Hobson, José Miola, Russell Sandberg, Elizabeth Sepper, and colleagues in the Coffee, Research and Pastries Reading group for helpful comments on drafts of this article. The usual disclaimers apply.

References

1 Smith, S.W., “A Bridge Too Far: Individualised Claims of Conscience” (2015) 23 Med.L.R. 283CrossRefGoogle ScholarPubMed.

2 Smith, S.W., “Individualised Claims of Conscience, Clinical Judgement and Best Interests”, (2018) 26 Health Care Analysis 81CrossRefGoogle ScholarPubMed.

3 See Smith, “A Bridge Too Far”.

4 Ibid.

5 The “best interests” test applies in a number of healthcare situations. For example, section 4 of the Mental Capacity Act 2005 requires that all decisions about treatment for patients who lack capacity to be made in the “best interests” of the patient. The best interests test is discussed in more detail in Section V below.

6 For example, in the Ms. B case, the patient indicated that she understood a doctor's indicating that “I personally will not do it”, Re B (adult: refusal of medical treatment) [2002] EWHC 429 (Fam), [2002] 2 All E.R. 449, at [50]. Reports from the Re A (conjoined twins) case also indicated that the parents and HCPs were able to continue to communicate despite their moral disagreement about what ought to happen to Jodie and Mary, Re A (Children) (conjoined twins: surgical separation) [2000] EWCA Civ 254, [2001] Fam. 147.

7 Fovargue and Neal also discuss duties which might arise from a claim of conscience in Fovargue, S. and Neal, M., “‘In Good Conscience’: Conscience-Based Exemptions and Proper Medical Treatment” (2015) 23 Med.L.Rev. 221CrossRefGoogle ScholarPubMed, at 233–41. However, the respective duties they endorse are different from the ones espoused here.

8 Saint Thomas Aquinas, Summa Theologica I, q. 79 aa. 12–13; I–II, q. 19 aa. 5, 6; Svenson, M., “Augustine on Moral Conscience” (2010) The Heythrop Journal 42Google Scholar.

9 Ibid. A broader discussion of Christian theology as it relates to conscience and how it operates is beyond the scope of this article.

10 Abortion Act 1967, s. 4; Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68, [2015] A.C. 640.

11 European Convention on Human Rights and Fundamental Freedoms (1950), Art. 9.

12 LaFollette, H., “My Conscience May Be My Guide, but You May Not Need to Honor It”, (2017) 26 Cambridge Quarterly of Healthcare Ethics 44CrossRefGoogle ScholarPubMed, at 44; Stahl, R.Y. and Emanuel, E.J., “Physicians, Not Conscripts – Conscientious Objection in Health Care” (2017) 376 New Eng.J.Med. 1380CrossRefGoogle Scholar.

13 Rienzi, M.L., “The Constitutional Right Not to Kill” (2012–2013) 63 Emory L.J. 121Google Scholar, at 130; United States v Seeger (1965) 380 U.S. 163, 175.

14 General Medical Council, Personal Beliefs and Medical Practice, available at https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/personal-beliefs-and-medical-practice/personal-beliefs-and-medical-practice (accessed 14 August 2019); British Medical Association, Expression of Doctors’ Beliefs, available at https://www.bma.org.uk/advice/employment/ethics/expressions-of-doctors-beliefs (accessed 14 August 2019).

15 R. (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] Q.B. 273.

16 Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] 1 A.C. 591, at [45].

17 Ibid.

18 See Smith, “A Bridge Too Far”.

19 Baylis, F., “A Relational View of Conscience and Physician Conscientious Action” (2015) 8 International Journal of Feminist Approaches to Bioethics 18CrossRefGoogle Scholar.

20 McLeod, C., “Taking a Feminist Relational Perspective on Conscience” in Downie, J. and Llewellyn, J. (eds.), Being Relational: Reflections on Relational Theory and Health Law (Vancouver 2012), 161–81Google Scholar.

21 See Smith, “Conscience, Clinical Judgement and Best Interests”.

22 Individuals will often talk about being forced to do something because of their conscience or otherwise act as if conscience took away their ability to make a free choice.

23 Even if we actually did not have the ability to do anything other than act according to our conscience, there is an argument that it would still be the result of a choice. See Fischer, J.M., My Way: Essays on Moral Responsibility (New York 2006)Google Scholar; Fischer, J.M. and Ravizza, M., Responsibility and Control: A Theory of Moral Responsibility (New York 1998)CrossRefGoogle Scholar. However, that argument is beyond the scope of this article.

24 Harris, L.H., “Recognizing Conscience in Abortion Provision” (2012) 367 New Eng.J.Med. 981CrossRefGoogle ScholarPubMed.

25 Sutton, E.J. and Upshur, R.E.G., “Are There Different Spheres of Conscience?” (2016) 16 Journal of Evaluative Clinical Practice 338CrossRefGoogle Scholar. See Smith, “Conscience, Clinical Judgement and Best Interests”.

26 Childress, J.F., “Conscience and Conscientious Actions in the Context of MCOs” (1997) 7 Kennedy Institute of Ethics Journal 403CrossRefGoogle ScholarPubMed; Sepper, E., “Taking Conscience Seriously” (2012) 98 Va.L.Rev. 1501Google Scholar; Neal, M. and Fovargue, S., “Conscience and Agent-Integrity: A Defence of Conscience-Based Exemptions in the Health Care Context” (2016) 24 Med.L.Rev. 544CrossRefGoogle ScholarPubMed.

27 See Childress, ibid.; Sepper, ibid.

28 See Smith, “A Bridge Too Far”; Antommaria, A.H.M., “Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral and Emergency Treatment” (2010–2011) 9 Ave Maria Law Review 81Google Scholar, at 84.

29 See Baylis, “A Relational View’; McLeod, “Taking a Feminist Relational Perspective”.

30 See Smith, “Conscience, Clinical Judgement and Best Interests”.

31 Section 4.

32 Section 38.

33 Aintree University Hospitals NHS Foundation Trust [2013] UKSC 67, [2014] 1 A.C. 591, at [45], per Lady Hale; R. (Burke) [2005] EWCA Civ 1003, [2006] Q.B. 273.

34 Aintree case, ibid.

35 R. (Burke) [2005] EWCA Civ 1003, [2006] Q.B. 273.

36 See Stahl and Emanuel, “Physicians, Not Conscripts”, p. 1380; Meyers, C. and Woods, R.D., “An Obligation to Provide Abortion Services: What Happens When Physicians Refuse?” (1996) 22 Journal of Medical Ethics 115CrossRefGoogle ScholarPubMed.

37 See Meyers and Woods, ibid.

38 Greater Glasgow Health Board [2014] UKSC 68, [2015] A.C. 640.

39 But see R. (Burke) [2005] EWCA Civ 1003, [2006] Q.B. 273.

40 See Smith, “Conscience, Clinical Judgement and Best Interests”.

41 Savulescu, J., “Conscientious Objection in Medicine” (2006) 332 British Medical Journal 294CrossRefGoogle ScholarPubMed; Savulescu, J., “The Proper Place of Values in the Delivery of Medicine” (2007) 7 American Journal of Bioethics 21CrossRefGoogle ScholarPubMed; Schuklenk, U. and Smalling, R., “Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies” (2017) 43 Journal of Medical Ethics 234CrossRefGoogle ScholarPubMed.

42 See e.g. Wicclair, M.R., “Conscientious Objection in Medicine” (2000) 14 Bioethics 205CrossRefGoogle ScholarPubMed; Sulmasy, D.P., “What Is Conscience and Why Is Respect for it So Important?” (2008) 29 Theoretical Medicine and Bioethics 135CrossRefGoogle ScholarPubMed; Cowley, C., “Conscientious Objection in Healthcare and the Duty to Refer” (2017) 43 Journal of Medical Ethics 207CrossRefGoogle ScholarPubMed; Maclure, J. and Dumont, I., “Selling Conscience Short: A Response to Schuklenk and Smalling on Conscientious Objections by Medical Professionals” (2017 43 Journal of Medical Ethics 241CrossRefGoogle ScholarPubMed; and Symons, X., “Two Conceptions of Conscience and the Problem of Conscientious Objection” (2017) 43 Journal of Medical Ethics 245CrossRefGoogle ScholarPubMed. All of the above support claims of conscientious objection but only subject to limitations.

43 See Neal and Fovargue, “Conscience and Agent-Integrity”; Maclure and Dumont, “Selling Conscience Short”.

44 See Smith, “A Bridge Too Far”. We may still be legally responsible in certain cases even if we did not make an autonomous decision.

45 Beauchamp, T.L. and Childress, J.F., Principles of Biomedical Ethics, 7th ed. (Oxford 2013)Google Scholar, especially ch. 4.

46 The interaction between autonomy and conscience is beyond the scope of this article, but it is worth stressing that it is more complicated that it might initially appear. Not all claims of conscience would actually protect autonomy.

47 See Neal and Fovargue, “Conscience and Agent-Integrity”, pp. 247–48 (discussing theories of conscience).

48 See Neal and Fovargue, Ibid. See Maclure and Dumont, “Selling Conscience Short”.

49 Kant, I., Fundamental Principles of the Metaphysics of Morals, tr. Abbot, T.K. (Amherst, NY 1988), 56, 62Google Scholar.

50 Glass v United Kingdom (Application no. 61827/00) (2004) 1 F.C.R. 553.

51 Ibid.

52 See Stahl and Emanuel, “Physicians, Not Conscripts”, p. 1381. Stahl and Emanuel do not link the failure to accept consequences with a failure of respect for others although much of what they say would be consistent with that view.

53 One important question that will not receive significant discussion in this article due to space limitations is the mechanism for determining societal approval. This article will presume that such approval would happen via a judicial determination after a full hearing, but there might be other methods which were as viable or even provide substantial benefits over a judicial model. A judicial model was chosen because it provides parallels to the actual Charlie Gard case which is the illustrative example. Nothing necessitates a judicial model as the only way society could assess whether claims of conscience ought to be approved.

54 Christopher Cowley makes a similar point, “Conscientious Objection in Healthcare”, p. 211, although his view appears based on notions of moral pluralism rather than equal concern and respect.

55 See e.g. Glover, J., “On Moral Nose” in Coggon, J., Chan, S., Holm, S. and Kushner, T. (eds.), From Reason to Practice in Bioethics: An Anthology Dedicated to the Works of John Harris (Manchester 2015)Google Scholar.

56 See e.g. the encyclicals or apostolic constitutions which are written by the Pope in the Catholic faith.

57 See e.g. J. Locke, An Essay Concerning Human Understanding, bk. 4, ch. 18, where he indicates that even though faith comes from God, we should not believe things where the evidence indicates something else. See also John Paul II, Fides Et Ratio (1998) available at http://w2.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_14091998_fides-et-ratio.html (accessed 15 August 2019), which, although critical of certain philosophical approaches, does reiterate the use of philosophy along with faith in learning about the world.

58 See Kant, Fundamental Principles, p. 49.

59 Anscombe, G.E.M., “Modern Moral Philosophy” (1958) 23 Philosophy 1CrossRefGoogle Scholar, at 2.

60 Ibid. For a discussion of ways to avoid this problem in Kant's theory, see also Schumski, I., “The Problem of Relevant Descriptions and the Scope of Moral Principles” (2017) 25 European Journal of Philosophy 1588CrossRefGoogle Scholar.

61 Fovargue and Neal have a similar expectation in relation to the duties owed by those making a claim of conscience as they indicate there should be a “general duty of respect”, “In Good Conscience”, pp. 233–34. While there is probably significant overlap between their general duty of respect and reciprocal respect as outlined here, there are probably also some significant differences in implication. Fovargue and Neal, for example, do not necessarily consider it appropriate for there to be a duty to refer or otherwise engage in actions which might seem to be “complicity”, ibid., at pp. 239–41. However, under the view espoused here, it probably is contained within the duty of reciprocal respect. This is because the duty of reciprocal respect focuses on the other parties and what they should be entitled to receive rather than whether such entitlements interfere with the objecting person's integrity.

62 Great Ormond Street Hospital v Yates, et. al. [2017] EWHC 972 (Fam), at [44].

63 Ibid., at para. [45].

64 Ibid., at para. [52].

65 Ibid.

66 Ibid., at paras. [53], [54], [58].

67 Ibid., at para. [58].

68 Ibid., at para. [71].

69 Ibid., at para. [74].

70 Ibid.

71 Ibid., at para. [90].

72 The High Court noted in the judgment that the experiments with mice with the less severe version of MDDS had only had an increase of “a little over 4% of normal lifespan”, Great Ormond Street Hospital [2017] EWHC 972 (Fam), at [102].

73 Judgment of the UK Supreme Court in the case of Charlie Gard, 19 June 2017, available at https://www.supremecourt.uk/cases/docs/charlie-gard-190617.pdf (accessed 15 August 2019). The statement about ethics, however, is simply in relation to continuing to treat Charlie after the judgments of the High Court and Court of Appeal that it was not in his best interests to do so.

74 Since the duty of beneficence is the duty to help others, including patients, it would not have violated that duty either. See Beauchamp and Childress, Principles of Biomedical Ethics, ch. 6.

75 The evidence is not available because the questions that would need to be answered were not posed to the parties. It is not a case that they could not be answered, but they are not answered on the record which exists of the case.

76 Aintree University Hospitals NHS Foundation Trust [2013] UKSC 67, [2014] 1 A.C. 591.

77 Ibid.

78 Ibid.

79 Aintree Universal Hospitals NHS Foundation Trust v James [2013] EWCA Civ 65, [2013] 4 All E.R. 67, at [19].

80 Ibid.

81 An additional group which may need to be considered is that of other patients. Continuing to treat Charlie reduces the time available to treat other patients and limits the availability of existing physical resources (hospital bed, equipment, etc.). The extent to which this group would need to be considered would depend on how immediate such concerns are. If there is a patient immediately waiting for the bed, that would be a more pressing concern – and thus one that ought to be more central to the discussion – than if the next patient is only a theoretical possibility at the time of decision. In general, though, other patients are likely to have only a minimal impact upon the decisions made.

82 Re B (adult: refusal of medical treatment) [2002] EWHC 429 (Fam), [2002] 2 All E.R. 449; Re A (Children) (conjoined twins: surgical separation) [2000] EWCA Civ 254, [2001] Fam. 147.

83 Glass (Application no. 61827/00) (2004) 1 F.C.R. 553.

84 For example, a lack of communication and inability to mutually respect each other's viewpoints seems to be one of the prime reasons for the significant disagreements between the parties in Glass, ibid.

85 For a different list of possible duties, see Fovargue and Neal, “In Good Conscience”.