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The Tale of the Ethical Neonatologist – And Why There Shouldn’t Be a Legal Right of Conscientious Objection

Doctors have values. These are sometimes described as their conscience. Those values can conflict with what has evolved to be medical practice. Where that practice is consistent with principles, concept and norms of medical ethics, their values should not compromise patient care. The place for doctors to express their values and seek to revise the practice of medicine is at the level of policy and law, not at the bedside. Because conscientious objection can compromise patient care, there should be no legal right to conscientious objection to medical practice that is consistent with medical ethics. Personal values (“conscience”) can be accommodated by employers under standard labour law as occurs in Sweden and Finland, or candidates selected for medical specialties who have values consistent with ethical medicine, or new professions developed to provide those services.

Doctors may have very defensible values. But just because their values are reasonable does not imply they should be accommodated by medicine. Consider the Conscientious Neonatologist.

The Conscientious Neonatologist

Peter is a thoughtful, reflective specialist caring for premature babies in intensive care. He is a vegetarian for 20 years. He became deeply concerned about the welfare of animals during his university years. He believes in “animal liberation”. Neither he nor his family consume meat or use animal products for clothing.

In his job, he must prescribe “surfactant” – a substance to help the lungs of premature babies function better. The standard, and most effective form is derived from the lungs of pigs. However there is a new artificial form. He considers this a more “ethical” product and considers using it in his medical practice. However, it is not currently used in the newborn intensive care unit because it is more expensive than standard treatment, and there is not clear evidence about its effectiveness.

Peter conscientiously objects to the use of animals in medicine and medical research. How should his personal values influence his professional practice?

Conscientious objection to the use of animals in medicine is a very credible and reasonable ethical position. Peter would be well within his rights to campaign to stop animal research and to replace animal products in medicine with synthetic, artificial alternatives, like the artificial surfactant.

However, should he decide to use this alternative for the care of his patients, based on his own ethical values to do with preventing the suffering and death of non-human animals? My answer is no. Whether he should be allowed to prescribe surfactant, at least within public medicine, is determined by the principles of medical ethics and law. In this case, primarily by whether it is in the patient’s best interests and whether it is cost-effective.

If the new form of surfactant were significantly less effective, it would be wrong to prescribe it, unless such a decision had been taken at a higher order level, at the level of policy or law.

If the new form of surfactant was much more expensive, and so would consume limited resources harming other patients, it would be equally wrong to prescribe it.

In such cases, patients will be harmed for the sake of a practitioner’s personal morals, and that decision must not be made by an individual doctor but through an open and societal level ethical process.

Sometimes patients are harmed for the sake of equality. When a decision is made to treat a very expensive condition in order to give people a chance, this promotes equality but results in the foreseeable, avoidable harm of the larger numbers of people who could have been treated with those resources. But society has some commitment to equality and it is an ideal evidently worth dying for.

Society might make a similar decision about extending equality to animals. But in the absence of such a general commitment, it is wrong of individual doctors to harm their patients for the sake of their personal values, not matter how rational, on the moral status of animals.

The same argument applies to conscientious objection to the practices around early human life, and the moral status of embryos and fetuses.

This is not to say that animals (or fetuses) don’t matter, or that they are not equal. It is to say that the appropriate place for decisions about those issues is not at the bedside, to the detriment of the patient in the doctor-patient relationship.

This is not to say that conscientious objection is incompatible with medicine. It is incompatible with practicising medicine which conforms to principles of medical ethics and law.

Ethical Medicine

In Europe, Canada, Australia, the US and many parts of the rest of the world, there is a well established field called medical ethics and law. This has body of concepts, theories, principles and norms which define what is ethical and legal medical practice. For example, the “Four Principles” of Beauchamp and Childress are an important part of medical ethics:

  1. Respect for autonomy
  2. Beneficence
  3. Non-Maleficence
  4. Justice

Of course, medical ethics and law extends way beyond this (see ‘Medical Ethics and Law: the Core Curriculum’). But that is a good place to start. This field defines what constitutes ethical and legal pratice, how much variation within it is justified (eg whether justice should give greater weight to utility or equality) and what lies outside of it. When doctors’ own values conflict with medical practice which is consistent with medical ethics, their values should not compromise patient care.

No Legal Right to Conscientious Objection to Contraception, Abortion and Euthanasia: But No Outright Ban

In ‘Doctors Have No Right to Refuse Medical Assistance in Dying, Abortion or Contraception‘, I argue that either we should not allow conscientious objection to contraception, abortion and euthanasia, or outsource to another discipline or profession outside medicine. People have described my position as incompatibilist, that is, that conscientious objection generally is incompatible with medicine.

In my original article ‘Conscientious Objection in Medicine’, I said it was not reasonable in public medicine to prevent patients obtaining access to medical interventions that are autonomously desired, in their interests, legal and consistent with distributive justice. That includes contraception, abortion and euthanasia/assisted dying in those jurisdictions in which they have been legalised.

The reason for this is twofold. In practice, conscientious objection, even with a referral clause, results in patients being denied access, or face unreasonable delays and hurdles to receiving medical services, even where there is an official requirement to refer on. Secondly, conscientious objection in practice often reflects religious beliefs which are an unreasonable basis for shaping delivery of medical services at the bedside in a liberal democracy. Personal religious values should not be imposed on patients.

While I argued in the BMJ article that conscientious objection could be accommodated by referral if there were sufficiently small numbers of objections, in practice this is often not the case. I don’t believe there should be a legal right to conscientious objection to these 3 services but nor do I believe there should be an outright ban on conscientious objection. Instead, objections should be considered on a case by case basis, according to the institution in which they occur.

If, and only if, the patient is not affected by conscientious objection in that institution: if they can see a doctor in a timely fashion and without humiliation, delay, or misinformation, who will give them their legal treatment, which they competently believe is in their best interests, then it would be reasonable for an institution to allow its medical workforce to choose which treatments they offer. However, if, as is all too often the case, conscientious objection in practice leads to patients being denied such treatments, refused them, or struggling to understand whether or not they are ultimately allowed such a treatment, the patient should be prioritized. For example, in Italy, 70-80% gynaecologists – the only health professionals authorized to perform abortions – are conscientious objectors.

In short, requests for conscientious objection should be accommodated in the same way as other special requests are accommodated under standard labour law by the employer. This is what happens in Sweden and Finland.

Peter, and all those who have a conscientious objection to current medical practice, should engage in debate and policy making. He might even consider leaving a job that he felt was incompatible with his conscience, or changing to a specialty that is compatible. And a good employer should accommodate its employees’ deeply held beliefs. But not at the expense of patients.

There is also a role for the employer and society in how we structure controversial medical procedures. Medical practice changes over time. I hope that someday, we will legalise euthanasia in a more direct form than we do at present. But it would mean an enormous change in the role of palliative care physicians, or GPs, or whichever specialty it is decided will be responsible for euthanasia. We could grandfather those who are already in those specialties, and ensure new trainees are aware of, and willing to perform the new role. But an alternative to this would be to establish a new specialty which focuses on euthanasia.

Once society decides that, say, euthanasia should be legalised, in my view the debate is over (at least at the bedside) and if medicine is to provide it, doctors’ own values, typically religious, have no place in restricting it. Alternatively, a reasonable response would be for a new specialty to be created. Conscientious objection at bedside should not interfere with efficient and fair delivery of services, objecting doctors can still express their reasons at the level of trying to change policy, law.

Ultimately, if we believe a medical practice should be offered, it must be made available equally and accessibly to eligible patients.

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2 Comment on this post

  1. This is permeated by the assumption of a vendor-consumer relationship in medicine, yet fails to justify why this analogy is appropriate or correct. The ‘medical treatment’ is seen as a desirable item which is supplied by the doctor, and the patient simply wants to have it. From this perspective, conscientious objections do seem unreasonable. If we go to the baker to buy bread, we don’t expect the baker to refuse the sale because he thinks bread is immoral. Fair enough. But that is no way to look at the doctor – patient relationship, and certainly not at the complexities of modern medicine.

    There is no ‘desirable treatment’ comparable to a desirable useful good, such as bread or other basic foods. The medical treatment may be inherently negative: it might (for instance) consist of being forcibly administered anti-psychotic drugs and locked up in a cell for years on end. The doctor may be extremely hostile to the patient, as I suggested in earlier comments on this issue. The patient may adopt different attitudes to treatment over time, as with de-transitioning gender re-assignment candidates. For this reason we can’t adopt the simple model suggested in this post, whereby the doctor simply supplies an undisputedly beneficial item, to the patient-consumer.

    I pointed out earlier that there is an alternative for the standardised ethical codes promoted by Julian Savulescu and other ethicists – namely the wholesale segregation of medical care on religious, ethnical, ethnic, social, and political lines. The preference for standardised ethics reflects an underlying preference for a unified community with shared values. However strong the preference, such a community does not exist in practice – as conflicts over abortion, euthanasia, and gender indicate.

  2. Firstly, your scenario is very confused. You say that the artificial surfactant is both more expensive and that ‘there is not clear evidence about its effectiveness.’ You then go on and say, ‘[i]f the new form of surfactant were significantly less effective, it would be wrong to prescribe it, unless such a decision had been taken at a higher order level, at the level of policy or law.’ The effectiveness of artificial surfactant could make quite a difference to how the conscientious objector doctor reasons.

    For the sake of brevity, let us take the ‘significantly less effective’ situation. Are you seriously suggesting that doctors must unquestioningly and obediently administer a significantly less effective drug simply because it has been authorised and prescribed ‘at a higher order level, at the level of policy or law?’ I have on numerous occasions refused to do what has been demanded at this “Level” because it was not in the patient’s interest, unethical and/or unlawful. On each occasion my actions were eventually vindicated (on one occasion after a two year battle with the legal Level), or I gave up battling the duplicity, corruption and irrationalism that is to found at this Level. In the real world you need those with practical knowledge and understanding to make decisions about whether what they do is ethical and lawful. Of course there may be a good reason for using a less effective drug, but that good reason should not per se be blind adherence to what the Level dictates.

    Of course there are problems with some theists in a clinical setting, but as with most medical ethicists you concentrate upon religious doctors without recognising that there are vastly more theists at other staff levels in the NHS. We could ignore their values on the grounds that they are at such a low level in the system their values should not affect the systems functionality, and if they do affect it they should somehow be neutralised. Even if this was acceptable in the average sized private healthcare organisation, the NHS directly and indirectly employs about 10% of the UK’s working population and is of course funded by everyone. The notion that the Level should or indeed could effectively dictate its values on the employees and patients is both risible and irrational. For sure there are some good old fashion systems theorists that believe it is possible; but, as they recognise, such systems are not compatible with liberal democracy.

    With Berlin I believe values can be incommensurable and that we should find ways to live and work by rubbing along with those that do not share our values. Bloody difficult but not impossible. (Paul’s segregation model would perhaps create more problems than it resolved.) However, the simplistic hierarchical decision-making you propose has not and will not accommodate and resolve incommensurability.

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