Conscientious objection: unmasking the impartial spectator

Hoping to bring some objectivity to the debate, Ben-Moshe has argued that conscientious objection in medicine should be accommodated based on its concordance with the 'impartial spectator', a metaphor for conscience drawn from the writings of Adam Smith. This response finds fault with this account on two fronts: first, that its claim to objectivity is unsubstantiated; second, that it implicitly relies on moral absolutes, despite claiming that conscience is a social construct, thereby calling its coherence and claims into question. Briefly, a traditional account of conscience is then described, before ending with a related thesis for future discussion.

Institutional refusal to offer assisted dying: A response to Shadd and Shadd

Ever since medical assistance in dying (MAID) became legal in Canada in 2016, controversy has enveloped the refusal by many faith-based institutions to allow this service on their premises. In a recent article in this journal, Philip and Joshua Shadd have proposed 'changing the conversation' on this issue, reframing it as an exercise not of conscience but of an institutional right of self-governance. This reframing, they claim, will serve to show how health-care institutions may be justified in refusing to provide MAID on moral or religious grounds. I argue that it will not make it easier to justify institutional refusal, and is likely to make it harder.

Conscientious objection should not be equated with moral objection: a response to Ben-Moshe

In his recent article, Ben-Moshe offers an account of conscientious objection (CO) in terms of the truth of the underlying moral objections, as judged by the standards of an impartial spectator. He seems to advocate for the view that having a valid moral objection to X is the sole criteria for the instantiation of a right to conscientiously object to X, and seems indifferent to the moral status of the prevailing moral attitudes. I argue that the moral status of the prevailing moral attitudes is relevant, and that a good faith disagreement between those who condone the relevant act and those who object to it is a criterion for CO. In this light, I suggest that CO is a sociopolitical device for managing differing ethical perspectives, particularly in the context of collective moral change. Thus, it is misguided to equate having a valid moral objection with the recognition of a CO.

Some difficulties involved in locating the truth behind conscientious objection in medicine

Inspired by Smith, Ben-Moshe suggests that we should only accommodate conscientious objections (COs) in medicine based on moral beliefs that are true, or which closely approximate to the truth. He suggests that we can identify moral truths by consulting our consciences when our consciences adopt the standpoint of an impartial spectator. He also suggests some (surprisingly modest) changes to our current practices in regard to the management of CO in medicine that would be needed were his proposal to be adopted. Here, I argue that both Smith and Ben-Moshe underestimate the difficulties involved in adopting the standpoint of an impartial spectator. In particular, both authors fail to recognise the extent to which cognitive bias and ideological commitments prevent many of us from identifying the standpoint of an impartial spectator and also prevent us from realising that we are failing to be impartial. I also consider some different changes to current practices that would be needed if we were to take on Ben-Moshe's approach to CO in medicine while also recognising the difficulties involved in adopting the standpoint of an impartial spectator.

The Effects of Adding Reassurance Statements: Cancer Patients' Preferences for Phrases in End-of-Life Discussions

CONTEXT

When discussing end-of-life issues with cancer patients, the addition of reassurance statements is considered helpful. However, patients' preferences for such statements have not been systematically demonstrated.

OBJECTIVES

The objectives of this study were to clarify if phrases with additional reassurance statements would be more preferable to phrases without them and explore variables associated with patients' preferences.

METHODS

In a cross-sectional survey, 412 cancer patients assessed their own preferences for phrases with/without additional statements using a six-point scale (1 = not at all preferable; 6 = very preferable). These included the statements of "hope for the best and prepare for the worst" ("hope/prepare") when discussing prognosis; symptom palliation when discussing code status; and specific goals, continuity of care, and nonabandonment when discussing hospice referral. We evaluated demographic data and the coping style and conducted multivariate regression analysis.

RESULTS

Compared with the phrase of life expectancy (i.e., median + typical range) alone [mean (SD), 3.5 (1.2); 95% CI, 3.4-3.6], the phrase with the additional "hope/prepare" statement was more preferable [3.8 (1.4); 3.7-3.9]. Compared with the phrase of do-not-resuscitate alone (3.1(1.3); 3.0-3.3), the phrase with the additional statement of symptom palliation was more preferable [3.9 (1.3); 3.7-4.0]. Compared with the phrase of hospice referral alone [3.4 (1.2); 3.3-3.5], phrases with the addition of a specific goal [3.9 (1.0); 3.8-4.0], specific goal and continuity (4.4(1.0); 4.3-4.5), and specific goal, continuity, and nonabandonment [4.8 (1.2); 4.7-4.9] were more preferable. In multivariate analyses, task-oriented coping was significantly correlated with preferences for phrases including additional reassurance statements.

CONCLUSION

Cancer patients systematically preferred reassurance statements. In end-of-life discussions, especially with patients with task-oriented coping, clinicians may provide additional reassurance statements.

Justifying Conscience Clauses

In "Disentangling Conscience Protections," in this issue of the Hastings Center Report, Nadia Sawicki offers a taxonomy of conscience protection laws (conscience clauses) that highlights the expansive protections they can offer to health professionals who refuse to provide a medical service for reasons of conscience. Conscience clauses can protect health professionals from adverse actions by public actors (such as administrative agencies, prosecutors, and government funders) or private actors (such as employers, private professional associations, and injured patients), and they can also protect health professionals from being subject to adverse actions for their beliefs, their conduct, or harm that results from their conduct. This taxonomy provides an accurate description of the broad range of protections conscience clauses can offer and thereby is a valuable contribution to the scholarly literature on conscientious objection in health care. But it remains to consider whether the distinctions Sawicki identifies disentangle conscience protections beyond merely providing a taxonomy. In particular, does the taxonomy identify relevant distinctions in relation to determining whether a conscience clause is justified?

Can conscientious objection lead to eugenic practices against LGBT individuals?

In a recent article in this journal, Abram Brummett argues that new and future assisted reproductive technologies will provide challenging ethical questions relating to lesbian, gay, bisexual and transgender (LGBT) persons. Brummett notes that it is likely that some clinicians may wish to conscientiously object to offering assisted reproductive technologies to LGBT couples on moral or religious grounds, and argues that such appeals to conscience should be constrained. We argue that Brummett's case is unsuccessful because he: does not adequately interact with his opponents' views; equivocates on the meaning of 'natural'; fails to show that the practice he opposes is eugenic in any non-trivial sense; and fails to justify and explicate the relevance of the naturalism he proposes. We do not argue that conscience protections should exist for those objecting to providing LGBT people with artificial reproductive technologies, but only show that Brummett's arguments are insufficient to prove that they should not.

No conscientious objection without normative justification: A reply

Benjamin Zolf, in his recent paper 'No conscientious objection without normative justification: Against conscientious objection in medicine', attempts to establish that in order to rule out arbitrary conscientious objections, a reasonability constraint is necessary. This, he contends, requires normative justification, and the subjective beliefs that ground conscientious objections cannot easily be judged by normative criteria. Zolf shows that the alternative of using extrinsic criteria, such as requiring that unjustified harm must not be caused, are likewise grounded on normative criteria. He concludes that conscientious objection is therefore untenable. Here, I present an alternative account, based on the value we are willing to place on conscientious objection as an expression of freedom of conscience and religion. Using an extrinsic criterion such as harm, we can make a judgement of what degree of harm should be tolerated as the cost of permitting conscientious objection. A normative criterion for judging individual claims is therefore not required.

Conscientious objection to referrals

Christopher Cowley ¹ has recently put forward three arguments against the legal accommodation of a general practitioner's conscientious objection (CO) to abortion referrals. ⁱ He claims that the adoption of these arguments does not undermine a more general right to CO to involvement in abortion. I argue that Cowley is seriously mistaken. His three arguments, especially the second and third, proceed on a path directed towards the outright rejection of a right to CO in healthcare contexts. A common problem with Cowley's three arguments is that they overlook the peremptory significance for CO analysis of both the internal, deliberating perspective of those with a CO and the good of moral integrity. This paper supports the view that either there are strong prima facie grounds for holding that a right to CO extends in principle to the issue of referrals or the claim of a general right to CO is easily assailable.

Metropolitan Audit of Appropriate Referrals Refused Admission to Intensive Care

We undertook a three-month prospective cohort study of critically ill adult patients referred to the Intensive Care Units 7(ICUs) of public hospitals in metropolitan Melbourne and Geelong, Victoria. The aim was to ascertain the prevalence and immediate consequences of “refused” admission amongst patients appropriately referred to the ICU of first choice.

Between August 1 and October 31, 1999, 10 (out of 12) public hospitals collected data. Three thousand and four patients were referred to these ICUs, and “refusals” were reported by all hospitals. A total of 282 (9.4%) patients were unable to be admitted to the ICU of first choice, giving a rate of 3.1 “refusals” per day. The reasons for “refusal” were limited staffing (52%) and shortage of beds (46%.) Acute inter-hospital transfer (1.7 per day) was the most common immediate triage outcome (57%). These rates are higher than previously reported figures.

We conclude that refused admission to the ICU of first choice, and acute inter-hospital transfer in this region and time period, were common events.

Alternatives to War Within Medicine: From Conscientious Objection to Nonviolent Conflict About Contested Medical Practices

When we figure medical practice as warfare, an individual clinician may be either a dutiful combatant or a conscientious objector. The rhetorical structure of this choice means that clinicians may exercise their consciences by loyally joining or disloyally exiting the medical ranks' battle against disease. But there are alternatives to loyalty and exit, and within psychiatry, these alternatives have transformed clinical services. In the 1970s, gay activists successfully resisted the American Psychiatric Association's characterization of homosexuality as a mental illness. In the 1940s, Mennonite nonresisters created the Mennonite mental health movement as a noncoercive alternative to standard psychiatric care. These gay activists and Mennonite volunteers opened communal alternatives to violence. When clinicians pursue nonviolent conflict about contested medical practices, they practice with the integrity that develops out of engaging in moral dialogue. Medicine becomes something more than a war in which individuals serve or to which they object: instead, it becomes a prudential set of practices that advance through principled disagreements and that expand the imagination of clinicians as they respond to the vulnerability of the people they meet as patients.

Institutional non-participation in assisted dying: Changing the conversation

Whether institutions and not just individual doctors have a right to not participate in medical assistance in dying (MAID) is controversial, but there is a tendency to frame the issue of institutional non-participation in a particular way. Conscience is central to this framing. Non-participating health centres are assumed to be religious and full participation is expected unless a centre objects on conscience grounds. In this paper we seek to reframe the issue. Institutional non-participation is plausibly not primarily, let alone exclusively, about conscience. We seek to reframe the issue by making two main points. First, institutional non-participation is primarily a matter of institutional self-governance. We suggest that institutions have a natural right of self-governance which, in the case of health centres such as hospitals or hospices, includes the right to choose whether or not to offer MAID. Second, there are various legitimate reasons unrelated to conscience for which a health centre might not offer MAID. These range from considerations such as institutional capacity and expertise to a potential contradiction with palliative care and a concern to not conflate palliative care and MAID in public consciousness. It is a mistake to frame the conversation simply in terms of conscience-based opposition to MAID or full participation. Our goal is to open up new space in the conversation, for reasons unrelated to conscience as well as for non-religious health centres who might nonetheless have legitimate grounds for not participating in MAID.

Conscientious objection and compromising the patient: Response to Hughes

Hughes offers a consequentialist response to our rejection of accommodation of conscientious objection in medicine. We argue here that his compromise proposition has been tried in many jurisdictions and has failed to deliver unimpeded access to care for eligible patients. The compromise position, entailing an accommodation of conscientious objection provided there is unimpeded access, fails to grasp that the objectors are both determined not to provide services they object to as well as to subvert patient access to the objected to services. Unpredictable future developments in drug R&D and resulting treatment and prevention options in medicine make the compromise position unrealistic.

Euthanasia and assisted suicide for people with an intellectual disability and/or autism spectrum disorder: an examination of nine relevant euthanasia cases in the Netherlands (2012-2016)

BACKGROUND

Euthanasia and assisted suicide (EAS) have been legally possible in the Netherlands since 2001, provided that statutory due care criteria are met, including: (a) voluntary and well-considered request; (b) unbearable suffering without prospect of improvement; (c) informing the patient; (d) lack of a reasonable alternative; (e) independent second physician's opinion. 'Unbearable suffering' must have a medical basis, either somatic or psychiatric, but there is no requirement of limited life expectancy. All EAS cases must be reported and are scrutinised by regional review committees (RTE). The purpose of this study was to investigate whether any particular difficulties arise when the EAS due care criteria are applied to patients with an intellectual disability and/or autism spectrum disorder.

METHODS

The 416 case summaries available on the RTE website (2012-2016) were searched for intellectual disability (6) and autism spectrum disorder (3). Direct content analysis was used on these nine cases.

RESULTS

Assessment of decisional capacity was mentioned in eight cases, but few details given; in two cases, there had been uncertainty or disagreement about capacity. Two patients had progressive somatic conditions. For most, suffering was due to an inability to cope with changing circumstances or increasing dependency; in several cases, suffering was described in terms of characteristics of living with an autism spectrum disorder, rather than an acquired medical condition. Some physicians struggled to understand the patient's perspective. Treatment refusal was a common theme, leading physicians to conclude that EAS was the only remaining option. There was a lack of detail on social circumstances and how patients were informed about their prognosis.

CONCLUSIONS

Autonomy and decisional capacity are highly complex for patients with intellectual disabilities and difficult to assess; capacity tests in these cases did not appear sufficiently stringent. Assessment of suffering is particularly difficult for patients who have experienced life-long disability. The sometimes brief time frames and limited number of physician-patient meetings may not be sufficient to make a decision as serious as EAS. The Dutch EAS due care criteria are not easily applied to people with intellectual disabilities and/or autism spectrum disorder, and do not appear to act as adequate safeguards.

Public reason and the limited right to conscientious objection: a response to Magelssen

In a recent article for this journal, Morten Magelssen argues that the right to conscientious objection in healthcare is grounded in the moral integrity of healthcare professionals, a good for both professionals and society. In this paper, I argue that there is no right to conscientious objection in healthcare, at least as Magelssen conceives of it. Magelssen's conception of the right to conscientious objection is too expansive in nature. Although I will assume that there is a right to conscientious objection, it does not extend to objections that are purely religious in nature. ⁱ Thus, this right is considerably more restricted than Magelssen thinks. In making my case, I draw on John Rawls's later work in arguing for the claim that conscientious objection based on purely religious considerations fails to benefit society in the appropriate way.

Conscientious objection, professional duty and compromise: A response to Savulescu and Schuklenk

In a recent article in this journal, Savulescu and Schuklenk defend and extend their earlier arguments against a right to medical conscientious objection in response to criticisms raised by Cowley. I argue that while it would be preferable to be less accommodating of medical conscientious than many countries currently are, Savulescu and Schuklenk's argument that conscientious objection is 'simply unprofessional' is mistaken. The professional duties of doctors should be defined in relation to the interests of patients and society, and for reasons set out in this article, these may support limited accommodation of conscientious objection on condition that it does not impede access to services. Moreover, the fact that conscientious objection appears to involve unjustifiable compromise from the objector's point of view is not a reason for society not to offer that compromise. Arguing for robust enforcement of the no-impediment condition, rather than opposing conscientious objection in principle, may be a more effective way of addressing the harms resulting from an over-permissive conscientious objection policy.

Why Some "Futile" Care Is "Appropriate": The Implications for Conscientious Objection to Contraceptive Services

In response to the criticism of Schneiderman and colleagues (2017) that two recent policy statements of professional medical organizations referred to some medical treatment that were traditionally called "futile" by the terms "inappropriate" or "potentially inappropriate," this critique accepts their claim challenging these terms as being hopelessly ambiguous. However, this critique rejects the conclusion they all share that clinicians or hospitals should have the unilateral authority to refuse to provide treatments that will plausibly achieve the end that the patient or surrogate is pursuing. Although clinicians should be presumed authoritative in deciding to reject treatments that will not achieve the patient or surrogate's end, they should be obligated, provided five conditions are met, to provide those treatments that will achieve the patient or surrogate's end. The implications of honoring a physician's right to conscientious objection to treatments they deem "futile" are compared to physician claims of the right to refuse to provide contraceptive services on the same grounds.