'In Good Conscience': Conscience-Based Exemptions and Proper Medical Treatment

Abstract

Lack of clarity about the proper limits of conscientious refusal to participate in particular healthcare practices has given rise to fears that, in the absence of clear parameters, conscience-based exemptions may become increasingly widespread, leading to intolerable burdens on health professionals, patients, and institutions. Here, we identify three factors which clarify the proper scope of conscience-based exemptions: the liminal zone of 'proper medical treatment' as their territorial extent; some criteria for genuine conscientiousness; and the fact that the exercise of a valid conscience-based exemption carries certain duties with it. These restricting factors should reassure those who worry that recognising rights of conscience at all inevitably risks rampant subjectivity and self-interest on the part of professionals. At the same time, they delineate a robust conscience zone: where a claim of conscience relates to treatment with liminal status and satisfies the criteria for conscientious character, as well as the conditions for conscientious performance, it deserves muscular legal protection.

Individualised Claims of Conscience, Clinical Judgement and Best Interests

“…6 I disagree with Fovargue and Neal on this point who argue for a limited 'duty to disclose one's position in advance provided this does not place [healthcare practitioners] at undue risk.' [9]. I do not disagree that fForewarning ought to be done in situations where it is possible but forewarning may not be possiblethis is unlikely in the 'too far' types of cases which are the focus of this article.…”

“…Fovargue and Neal have a similar claim which requires that the individual be able to 'articulate' their view but does not require 'thoughtfulness' in the way that Baylis appears to mean. [9]. 6 I disagree with Fovargue and Neal on this point who argue for a limited 'duty to disclose one's position in advance provided this does not place [healthcare practitioners] at undue risk.'…”

“…Consequently, I would endorse the view taken by Fovargue and Neal's view that it must be possible to articulate the basis of the position in a general way without a necessary requirement about being able to focus on a specific set of rules which apply in a particular case. Furthermore, aAny reflection necessary to be able to articulate the basis of the position can occur after the decision although that does not eliminate the requirement, also stated by Fovargue and Neal, that the position be sincere [9].…”

“…This is consistent with the view of conscience put forward by Fovargue and Neal. [9]. In their article, Fovargue and NealThey argue that it is 'too onerous' for a decision to fit within a coherent set of beliefs.…”

Conscientious objection in healthcare and the duty to refer

“…Conscientious objection (CO) in healthcare has its opponents1–3 and its defenders,4 5 including myself 6. By far the subtlest, most wide-ranging discussion and most empirically-informed account (although focusing mainly on the USA) is that of Wicclair 7.…”