Should healthcare professionals be able to ‘opt out’
of clinical procedures on the basis of conscience,
and should this be safeguarded in law? In some
circumstances, personal conscience can be seen as
being at odds with the professional role. The nurse may be
fundamentally opposed to a particular procedure or treatment
approach because of her personal religious or cultural beliefs,
but should that entitle her to refuse to be involved in that
procedure or treatment?
While the Human Rights Act 1998 provides safeguards for
individual decision-making autonomy through Article 8, (the
right of privacy of home and family life which can be seen
in terms of safeguarding autonomous decision-making), and
Article 9 (which safeguards freedom of conscience, religion
and belief); both these rights are what are known as ‘qualified
rights’, qualified by other public–interest considerations
such as public health and prevention of crime and disorder.
Individual beliefs therefore need to be seen in a broader
context when considering the regulation of the delivery of
health care (McHale, 2008).
Conscientious objection and the statutory
‘opt-out’ rights in health care
Currently, English law contains only two statutory provisions
which provide for a right of conscientious objection for
healthcare professionals. First is in relation to abortion. The
Abortion Act 1967 recognizes the right of the healthcare
professional not to participate in the termination of a
pregnancy. The provision was introduced as a means of
safeguarding the position of those who believe that human life
begins at conception, and the foetus is a person or potential
Jean V McHale
person. Section 4 of the Abortion Act 1967 provides that: S.4
‘(1) Subject to subsection (2) of this section, no person shall
be under any duty whether by contract or by any statutory
or other legal requirement, to participate in any treatment
authorized by this Act to which he has a conscientious
objection provided that in any legal proceedings the burden
of proof of conscientious objection shall rest on the person
claiming to rely on it.’
It is unclear as to the degree to which this extends to
those who object to referring a patient for an abortion. The
suggestion was made in Barr v Matthews ([2000] 52 BMLR
2717) that once termination of pregnancy is an option
then the doctor invoking the conscientious objection clause
should refer the patient to a colleague at once. Furthermore,
there are recognized limits to the section. So for example,
in Janaway v Salford Area Health Authority ([1988] 3 All ER
1079), a receptionist who was a committed Roman Catholic
refused to refer a patient for an abortion. It was held that she
was not covered by section 4. To extend the section to cover
someone, such as Mrs Janaway, was simply too remote from the
abortion process itself. Section 4 is not absolute in its nature
to protect those directly engaged in the abortion process in
all situations. Subsection 4(2) provides that: ‘(2) Nothing in
subsection (1) of this section shall affect any duty to participate
in treatment, which is necessary to save the life or to prevent
grave permanent injury to the physical or mental health of a
pregnant woman.’
Thus if a patient requires emergency treatment and this
will involve the pregnancy being terminated, a healthcare
professional cannot opt out of the abortion process. The law
requires that in such a situation their legal duty is to their
patient to save his or her life.
The second provision in English law, which currently
safeguards conscientious objection, is that of section 38 of
the Human Fertilization and Embryology Act 1990. This
piece of legislation, amended by the Human Fertilization and
Embryology Act 2007, regulates reproductive technologies
such as in vitro fertilization and embryo research. This is
another area which is of acute ethical controversy and where
individuals hold strong views based upon the status of the
embryo. Section 38 of the 1990 Act thus provides that: ‘(1)
No person who has a conscientious objection to participating
in any activity governed by this Act shall be under a duty,
however arising to do so. (2) In any legal proceedings the
burden of conscientious objection shall rest on the person
claiming to rely on it.’
The Nursing and Midwifery Council has advised that
nurses who do object under both the 1967 and 1990 Act ‘are
Professor
Jean V McHale
is Professor of
Law, School
of Law,
University of
Birmingham
Accepted for
publication:
October 2009
Abstract
This article examines to what extent nurses can at present opt
out of clinical procedures on the basis of conscience in English
law. It considers the current rights to opt out on the basis of
conscience contained in section 4 of the Abortion Act 1967 and
section 38 of the Human Fertilisation and Embryology Act 1990.
It examines how through codes of practice and guidance, there
is recognition of the ability to opt out beyond theses statutes.
It suggests that rather than let practice evolve to enable persons
to opt out, the fundamental issues as to whether it should be a
right or a privilege needs careful consideration across healthcare
professions as a whole and a broader public debate.
Key words: Abortion n Conscientious objection n End-of-life care
n Ethics
1262 British Journal of Nursing, 2009, Vol 18, No 20
British Journal of Nursing, 2009, Vol 18, No 20 1263
SPECIALIST HEALTHCARE LAW
In cases where the patient now lacks capacity but has made
a valid and applicable advance decision to refuse treatment
which a doctor or health professional cannot, for reasons of
conscience, comply with, arrangements should be made for
the management of the patient’s care to be transferred to
another healthcare professional. Where a transfer cannot be
agreed, the Court of Protection can direct those responsible
for the person’s healthcare (for example, a Trust, doctor or
other health professional) to make arrangements to take over
responsibility for that person’s programme of care.
The Code of Practice is reflective of earlier case law. For
example, in Re B, Butler Sloss upheld the decision of Ms B, a
competent patient wishing to be withdrawn from ventilator
support despite opposition from those caring for her. Butler
LJ Sloss held that: ‘The right of the competent patient to
request cessation of treatment must prevail over the natural
desire of the medical and nursing profession to try and keep
her alive.’ She indicated that in a situation in which there was
disagreement, arrangements should be made for the patient’s
care to be transferred to another healthcare professional.
This approach is also reflected in guidance from the General
Medical Council (GMC, 2008).
Conscientious objection and nurses: the future
The question of conscientious objection is very much an issue
for some health care professionals, and as technology advances,
new ethical dilemmas emerge which may give rise to yet
further pressure to ‘opt-out’. There is recognition both in law, in
Codes of Practice and in professional practice guidelines of the
ability, and in some cases the right to opt-out from treatment.
But should health professionals be able to opt out of the clinical
encounter (Savulescu, 2006)? It is suggested that there is a danger
in allowing ‘opt-out’ to be seen as an entitlement gradually
through guidance, without the legitimacy and the boundaries
of such an opt-out being subject to a thorough reconsideration.
If this does happen, just what precisely would the impact be
upon patients? We need to step back and re-evaluate when and
to what extent acting as a healthcare professional is compatible
with the ability to opt out of a procedure on the basis of
conscience, and what the boundaries should be.
It is submitted that a fundamental reconsideration of whether
this should be a right or a privilege, or indeed not recognized at
all, is needed across the healthcare professions and indeed more
broadly in the public policy arena. Not simply in areas such as
assisted dying, but more broadly in relation to clinical procedures
as a whole rather than sanctioning incremental extension of
‘opt-out’ across health care. BJN
Dyer C (2006) UK House of Lords reject physician assisted suicide. BMJ
332: 1169
General Medical Council (2008) Personal Beliefs and Medical Practice: Guidance
for doctors. GMC, London
House of Lords Select Committee (2005) Assisted Dying for the Terminally
Ill Bill, First Report. The Stationery Office, London. Available at http://
www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/8602.
htm (accessed 30 October 2009)
McHale JV (2008) Health Care Choices, Faith and Belief in the Light of the
Human Rights Act 1998: New Hope or Missed Opportunity. Medical Law
International 9(4): 331
Nursing and Midwifery Council (2008) Conscientious Objection Advice
Sheet. Available at: http://www.nmc-uk.org/aDisplayDocument.
aspx?documentID=4027 (accessed 30 October 2009)
Savulescu J (2006) Conscientious objection in medicine. BMJ 332(7538): 425
reminded that they are accountable for whatever decision that
they make and could be called upon to justify their objection
within the law’ (NMC, 2008).
Conscientious objection and end-of-life
decision making
Interestingly, since the Human Rights Act there has been
little attempt by healthcare professionals to use human rights
principles to extend the basis on which conscientious objection
may be safeguarded, and no challenge by health professionals
under Article 9 of the Human Rights Act in the courts.
However, were English law ever to be amended to sanction
some form of assisted dying, then it is suggested that the
question of conscientious objection by healthcare professionals
in relation to this issue would need to be addressed.
Lord Joffe has in the past introduced legislation to legalize
assisted dying. The Assisted Dying for the Terminally Ill Bill
(House of Lords Select Committee, 2005) would, if enacted,
have had the effect of sanctioning assisted dying by medical
practitioners where requested by a competent terminally ill
patient (Dyer, 2006). Clause 7 of the Bill enabled doctors
who believe in the absolute sanctity of human life to refuse
to participate in activities governed by this Bill. But the
clause went on to provide that nonetheless, the physician
who conscientiously objected should refer the patient to
another doctor who did not have such an objection. This was
subsequently criticized as to force health professionals to refer
to another if they objected on conscience grounds could be
seen as a breach of the European Court of Human Rights,
and Lord Joffe was persuaded to remove the clause. It was also
suggested that it was problematic in that it was restricted to
doctors, and Lord Joffe subsequently agreed to extend it to
other health professionals.
Conscientious objection and codes of practice
In relation to other aspects of healthcare decision-making there
has also been some sanctioning of the healthcare professional’s
ability to ‘opt out’, albeit not explicitly in statute. This is
through the Mental Capacity Act Code of Practice. The Mental
Capacity Act 2005 regulates decision–making concerning
adults lacking mental capacity. It makes provision for advance
refusal of treatment – advance decisions commonly referred
to as ‘living wills’. It also enables proxy decision–makers to
be appointed to make decisions for adults lacking mental
capacity – in the form of lasting powers of attorney. The
Act safeguards those healthcare professionals who act in the
reasonable belief that they are acting in accordance with a valid
advance decision or advance refusal, though does not include
a statutory ‘opt-out’ provision.
The Mental Capacity Act Code of Practice provides that
even though healthcare professionals may disagree with
a patient’s refusal of treatment, they cannot abandon the
patient. The Code of Practice goes on to state that: ‘Healthcare
professionals should make their views clear to the patient and
the healthcare team as soon as someone raises the subject of
withholding, stopping or providing life-sustaining treatment.
Patients who still have capacity should then have the option
of transferring their care to another healthcare professional, if
it is possible to do this without affecting their care.’
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