‘How?’ Exploring the options for effecting protection: Providing for conscience in law and professional guidance

The Accommodating Conscientious Objection Research Network (ACoRN) met in Manchester in June 2019, to explore the practical matter of how to accommodate conscientious objection in health care practice. I joined them for this third roundtable where attention turned to the legal and regulatory mechanisms for protecting and regulating conscientious objection – who should be responsible for regulating conscientious objection?, what role should the law and professional regulation play?, and what should be the form and content of such regulation?

At the heart of the matter lies a question of balance. The exercise of conscientious objection by health professionals is not a purely private concern, but one that engages the interests of patients, health professionals, employers, service providers and the public. How should these various rights and interests be counted in the protection of conscientious objection?

Professor Sara Fovargue (Lancaster) opened with an exposition of the current legal and regulatory framework. What emerged was an incohesive and, at times, inconsistent patchwork of international and domestic legislation, codes of practice, professional regulatory standards and professional body guidance. The analysis highlighted a number of observations and prompted questions that provided further thought for the discussions ahead:

  • There is concern that professional guidance is gradually expanding the entitlement to conscientiously object,[1] but who should determine the proper scope and exercise of conscientious objection? What obligations, if any, should be placed on health professionals seeking to exercise a conscientious objection? Should there be a duty to refer?
  • Current statutory exemptions focus on individual treatments, but might a general conscience clause be preferable?
  • Could Article 9 of the Human Rights Act 1998, protecting the right to freedom of conscience and to manifest one’s religion or belief, operate in such a way?
  • The Conscientious Objection (Medical Activities) Bill 2017 seeks to expand the scope of statutory exemptions, but does it strike the right balance between protecting the right to conscientiously object and the rights and welfare of patients in accessing services?

As Professor Fovargue concluded, there is a need for greater clarity of the legal position.

Dr Peter West-Oram (Brighton & Sussex) followed with a focus on what conditions need to obtain for accommodation of conscientious objection in health to be justified. Expanding on Dan Brock’s conventional compromise,[2] he proposed the elements of an ideal compromise involving mutual concessions. He argued that the legal position of conscientious objection must reflect an active neutrality amongst competing moral perspectives. To achieve this, he highlighted the importance of considering not only the material harm that might be caused by conscientious objection, but also the dignitary harm. It is necessary to consider what is expressed when the State endorses the protection of conscientious objection to certain services.

Dr Lucy Frith’s (Liverpool) presentation included an interesting look at conscientious objection in the context of fertility treatment and the Human Fertilisation and Embryology Act 1990. She framed her approach around an understanding of what is being conscientiously objected to. The law prohibits conscientious objection on the basis of discrimination against individuals, but permits it in relation to abortion. The central concern is the moral status of abortion and in this we are permitted to disagree. The issue is how to distinguish between prejudice and principle. Her presentation concluded with consideration of the moral work involved in the exercise of conscience and she called for a more nuanced view of participation in morally contested treatments.

Focus then turned to the position in Ireland, with Dr Barry Lyons’ (Trinity) discussion following the recent changes there to abortion law. His presentation demonstrated the practical difficulties for service provision as a result of objections to abortion. There was consideration of the inherent power structures of medicine and the vulnerability of patients. A concern is the disproportionate impact on patients in terms of both material and dignitary harm when those in powerful positions claim a conscientious objection. In calling for a clearer definition of the scope of protection of conscientious objection, Dr Lyons suggested consideration be given to what is expected of a ‘minimally decent doctor.’

The concept of dignitary harm arose again during Dr Sheelagh McGuinness’s (Bristol) discussion of section 4 of the Abortion Act 1967. Pointing to the symbolic nature of the law, she suggested that the conscience clause is a source of dignitary harm because it situates abortion on the moral fringes and thereby implies a questioning of the morality of women who seek abortions. Dr McGuinness argued that conscience clauses are problematic because they create an absolute right to conscientiously object that precludes a balancing of relevant interests.

The final presentation by Professor Ian Leigh (Durham), outlined the legal techniques applicable to conscientious objection as operating at four levels and detailed their varying approaches to the balancing of interests: (i) constitutional and/or human rights legislation, (ii) general domestic provisions such as the Equality Act 2010, (iii) specific provisions in the form of statutory conscience exemptions, and (iv) statutory professional regulation. He drew a distinction between a definitional balancing that draws boundaries and a more contextual, proportional approach that seeks to address and weigh competing interests in individual cases.

Small group discussions were valuable with concepts of proportionality, dignitary harm, alternative, specialist forms of provision, system organisation and professional regulation being explored. In her reflections at the end of the day, Professor Margot Brazier (Manchester) acknowledged that conscientious objection is an issue that has long vexed health lawyers and ethicists. In essence, she explained, conscientious objection operates in areas where those of good faith disagree and the question being asked is when is it ok to refuse to help? Professor Bobbie Farsides (Brighton & Sussex) considered alternative approaches: must we always turn to law to resolve problems?, might principles of solidarity and reciprocity illuminate the discussion?, and might it be better to incentivise those who undertake the contentious work? She reflected that there is no easy solution and that a consensus in approach requires more than a purely legal resolution. What is needed is a broader response involving negotiation and a cultural shift underpinned by effective investment in resources.

As the day drew to a close, a complex picture had developed. A recurring theme was the need to better define the scope of protection of/for conscientious objection, and clearer guidance as to its proper exercise by health professionals. This is likely to require meaningful revision of the current legal and regulatory framework, and engagement with a much broader range of concerns and interests than might first appear. While the inflexible and selective statutory exemptions have been open to challenge, what of human rights and equality law? What might the principle of proportionality have to offer? Does the legal framework leave too much to professional regulation?

There was certainly plenty to ponder on the journey home!

Amy Williams, Postgraduate student, LLM in Healthcare Ethics and Law, University of Manchester; Lecturer, Faculty of Health, Social Care and Medicine, Edge Hill University, Liverpool

[1] JV McHale, ‘Conscientious objection and the nurse: A right or a privilege?’ (2009) 18 British Journal of Nursing 1262.

[2] DW Brock, ‘Conscientious refusal by physicians and pharmacists: Who Is obligated to do what, and why?’ (2008) 29 Theoretical Medicine and Bioethics 187.

Why can healthcare professional make conscience claims and so not provide certain treatments and procedures?

The second ACoRN Roundtable took place on 15 November 2018 at Cardiff University. In this roundtable, we moved on from the question posed at the first one (‘what is conscience?’) and looked at the ‘why?’ question; in particular, focusing on why healthcare professionals are entitled to make conscience claims in a variety of situations but other, perhaps similarly situated, professions (such as social workers or prison officers) are not. What is about healthcare professionals that entitles them to this special dispensation? Or, is it, perhaps, not healthcare professionals themselves, but the roles that they play and the jobs that they do, which means that they are entitled to such a dispensation? If this is the case, then what is about, for example, performing an abortion that makes it different from putting someone into solitary confinement or having to remove a child from their parents, such that the first is subject to conscience claims and the other two are not? Alternatively, are we incorrect and other professionals (such as social workers and prison guards) are entitled to make conscience claims in the ways that healthcare professionals can? These were the sorts of questions considered in this roundtable.


The roundtable was broken down into four sessions. In the first session, John Coggon (Bristol) started the discussion by focusing on evolutions in public health law and public health ethics and what they might bring to discussions of conscience and conscientious objection. This included exploring the way that conventional medical law and ethics seems to prioritise the role of doctors and lawyers over other individuals involved in health and care. John considered the direction of travel between ethics and law and public health ethics and law, in terms of conscience. Finally, he explored the prioritisation of conscientious objection as opposed to other forms of conscience claim in healthcare, and what that might mean for the questions we were answering.


Caroline Roberts (Bristol) followed John’s presentation, and she explored the role of the European Court of Human Rights in the protection of conscience. Specifically, she focused on the Court’s approach to Article 9 of the European Convention of Human Rights (ECHR) which protects, among other things, freedom of conscience. She outlined the developments in the jurisprudence of the court in relation to Article 9 and noted that healthcare professionals do not have special rights under that Article. This may have surprised many participants, but Caroline showed how, under the European Convention, healthcare professionals are not treated differently to other professions.


In the second session, Alberto Guiblini (Oxford) focused on the question of whether healthcare professionals ought be entitled to special dispensation on their basis of their moral beliefs. He first considered whether healthcare was a moral enterprise and argued that it was. This did not, he argued, mean that we ought, necessarily, to allow healthcare professionals to claim conscience. Rather, Alberto suggested that the fact that healthcare was a moral enterprise meant that we ought not to leave those types of conscientious decisions to individual professionals who might not have moral expertise. Instead, we ought to determine society’s answer to those questions because we can better account for the general moral expertise of a community, as well as take better account of other’s interests.


Toni Saad (Cardiff and Vale University Health Board) also considered whether medicine was a moral enterprise and he also looked at the role played by practical reason in relation to conscience. In contrast to Alberto, Toni suggested that conscience was part of practical reason and, as such, it ought to be protected because it allows individuals to make more moral decisions on the basis of their practical reason.


The third session explored different aspects of whether healthcare professionals ought to be a special case for conscience. Christina Lamb (Alberta) focused on her empirical research on the experiences of nurses involved in conscientious objection in Canada. She detailed some of the results of her interviews with nurses, when they discussed their experiences about conscientious objection as well as their views on the subject.[1] Christopher Cowley (Dublin) followed Christina, and he explored in more depth the comparison between healthcare and social work. He asked why it might be that we considered healthcare to be the kind of case in which conscientious objection would be appropriate but social work (and related fields) might be inappropriate. He sketched out how we might justify these distinctions and whether they were sustainable in the long term.


The final session of the roundtable involved small group discussions focusing on the question of whether medicine and healthcare were, in fact, special cases. Groups had lively discussions on a range of issues. Most groups felt that healthcare was a moral enterprise, but the impact of this answer varied according to the group. Additionally, while some groups agreed that conscientious objection was appropriate in healthcare even if it was not in other fields, not because of the profession of medicine but because of the ethical impact of the role and jobs that healthcare professionals play, others though that this might mean that conscience ought to be seen more broadly in other fields. In other words, for some groups the question was not why healthcare ought to be seen as different from areas such as social work, but why social workers should not be granted the same rights and privileges as healthcare professionals.


This roundtable was, from my perspective as the organiser, a great success, as the lively and fruitful discussions and debates initiated in roundtable 1 continued here too. These have given us much to consider and think about. It should also set us up well for the third and fourth roundtables, where we will consider how best to regulate conscientious objection (roundtable 3) and then when and where to regulate conscientious objection (the final roundtable).


[1]  For a discussion of these results, see: C Lamb et al, ‘Conscientious objection and nurses: Results of an interpretive phenomenological study’ (2018) Nursing Ethics 1; C Lamb et al, ‘Conscience, conscientious objection, and nursing: A concept analysis’ (2019) 26 Nursing Ethics 37; C Lamb et al, ‘Nurses’ use of conscientious objection and the implications for conscience’ (2019) 75 Journal of Advanced Nursing 594.

What role for conscientious objection in medicine?

What do we mean by conscience? What part, if any, should it play in medical practice? Should health professionals be free to object to providing lawful treatments on the grounds of conscience? If so, how far should the freedom extend?

These questions were the focus of a fascinating recent roundtable in Glasgow, organised by the Accommodating Conscience Research Network. (ACoRN)

Two distinct questions emerged. Firstly, what do we mean by conscience? Secondly, what respect is it due in a publicly-funded health service?

Like many well-worn concepts we think we know—roughly—what we mean by conscience. But on a second look it gets trickier. We can probably agree that conscience has several basic features. It is subjective: when we examine our conscience we turn our moral gaze inward. It refers to our own private morality, even though we may claim external support for it. Kant referred to it as an “inner court”. It is also a motivating force—it provides reasons for action or inaction.

Although a moral capacity—it is about right and wrong—it has no pre-ordained moral content. You may believe that participating in abortion is wrong, I may believe that women have a right to it. They can both be matters of conscience.

It is linked, slightly mysteriously, to identity. Some feel that if asked to go against their conscience they are harmed, though it is not easy to specify how. Whatever the nature of the harm, it is linked to the reasons why conscience is sometimes played as a moral trump. Claims grounded in conscience are often said to have particular force.

This is allied to another feature of conscience: it has cognitive content. It is plausible to think of conscience as a feeling that conveys thoughts. When I listen to my conscience I am being instructed or guided, I am being given knowledge. But of what? And this is where it gets really interesting. There was a great paper at the roundtable about two kinds of knowledge claimed for conscience: knowledge of truths and knowledge of reasons. And this is the slightly rickety bridge into a second question—the question of what respect is due to conscience in public health care.

One (worrying) claim made for conscience is that it enables direct access to moral truth. According to this view, if I listen closely enough I will hear the truth and therefore have my guide. Nothing else is needed. Introspection is enough. At least one huge problem with this is reliability. How do I know I am listening to my conscience and not buried prejudice? And if new information, or more persuasive arguments emerge, how should I respond?

A (to me) much more attractive view is that when we look inward we are reflecting upon our internalised values—that we are taking a core sample of our sedimented beliefs and experiences and working out how they fit the circumstances we find ourselves in. According to this view, although it has a personal aspect, our conscience also faces outward, to the public sphere. As such the pronouncements of our conscience are open to reasoning, revision and, where appropriate, accommodation.

Which brings us to the scope of conscientious objection in a publicly-funded health system like the NHS. What part should the private beliefs of health professionals play when delivering public services? This looks like a political question. How do we adjudicate between a claim to a lawful and publicly available procedure and a claim by a health professional that she doesn’t want to provide it? How far should private reasons intrude in the public sphere?

I like an argument put forward by bioethicists Peter West-Oram and Alena Buyx. To put their subtle argument crudely, whatever normative force supports a conscientious objection must support a claim to timely and appropriate treatment. The former cannot trump the latter. And this extends to the organisation of health services. No claim in conscience can logically lead to burdens for those seeking lawful treatment.

To this should be added some pragmatism. The sheer complexity of modern healthcare means that accommodating a wide range of conscience claims will likely lead to chaos—and to avoidable harms.

Currently the law supports a right to conscientious objection with regards to participating in abortion and certain procedures linked to fertility treatment. I can see no good reasons for extending it.


Julian Sheather is ethics manager, BMA. The views he expresses in his opinion pieces are entirely his own.


This blog was first published at https://blogs.bmj.com/bmj/2018/04/10/julian-sheather-what-role-for-conscientious-objection-in-medicine/

Conscientious Objection at the European Court of Human Rights

Are cases concerning conscientious objection in the context of healthcare treated as ‘special cases’? This was the key question for discussion at the ACoRN Roundtable 2 in Cardiff in November 2018, at which I was invited to present a paper. In my paper, I discussed the approach of the European Court of Human Rights (ECtHR) to a range of conscientious objection claims under Article 9 – the right to freedom of thought, conscience and religion – of the European Convention on Human Rights (ECHR). I argued that in terms of ECtHR jurisprudence, the short answer to the question of whether conscientious objection claims in the context of healthcare are given ‘special treatment’ by the ECtHR is, to date at least, ‘no’.[i] This post briefly summarises that paper.

Conscientious Objection

‘Conscientious objection’ is often understood synonymously with conscientious objection to military service, but under ECHR Article 9 this is just one of a variety of different ‘types’ of objections made on the basis of conscience (variously referred to as ‘objections’ or ‘refusals’ to act in a way that is contrary to one’s conscience or contrary to one’s religion or belief). To demonstrate that the ECtHR does not treat claims of conscientious objection in healthcare as special cases, it is useful to consider such claims against the broader background of conscientious objection to military service and objections to the payment of tax under Article 9.

Conscientious Objection to Military Service

For many years the ECtHR offered no protection under Article 9 to those who objected to military service or alternative civilian service. From the case of Grandrath v Germany (1966)[ii] onwards, the ECtHR repeatedly stated that Article 9 was ‘irrelevant’ in claims concerning conscientious objection to military service because ECHR Article 4.3.b excludes from the notion of ‘forced labour’ military service or alternative service exacted in place of military service. The turning point in terms of the ECtHR’s approach to such claims did not come until the Grand Chamber’s judgment in Bayatyan v Armenia (2011).[iii]

In Bayatyan the Grand Chamber recognised that since Grandrath there had been considerable development in the recognition of the right to conscientious objection across Europe and, by taking a ‘living instrument’ approach to the ECHR, it explained that Article 9 should no longer be read in the light of Article 4.3.b. For the Grand Chamber, conscientious objection to military service could constitute a manifestation of religion or belief (and therefore gain protection under Article 9) where the objection was motivated by genuine religious beliefs which were ‘in serious and insurmountable conflict with the obligation to perform military service’.[iv] In Baytyan, the Grand Chamber decided that the applicant’s punishment for refusal to perform such service constituted an interference with the right to manifest religion or belief, that the interference was not in accordance with permissible limitations under Article 9.2, and therefore found a violation of Article 9.

The ECtHR has taken the same approach in a number of subsequent cases in which it has found a ‘serious and insurmountable conflict’ between the belief and the obligation to perform military service.

Objections to the Payment of Taxes

The ECtHR has been, and remains, reluctant to offer protection to individuals who have conscientiously objected to paying taxes under Article 9. In the classic case of C v UK (1983),[v] in which Quakers objected to paying the portion of Inland Revenue Tax used for military expenditure, the Commission simply explained that while Article 9 protects the sphere of personal beliefs and religious creeds, and acts linked to such beliefs, it does not always guarantee the right to behave in the public sphere in any way which is dictated by a religion or belief. It observed that the obligation to pay taxes is a general and neutral obligation and has no specific conscientious implications in itself. Furthermore, the Commission explained that Article 9 does not protect a right to refuse to pay certain taxes because a portion may be spent on military expenditure, and so found no violation of Article 9.

In Bouessel du Borg v France (1993),[vi] in which applicants objected to making social security contributions because following a change to abortion laws the cost of some voluntary terminations were covered by social security, the ECtHR took a similar approach. The Court explained that the obligation to pay tax is a general and neutral obligation and does not have any specific impact in terms of conscience. Additionally, Article 9 does not confer a right to invoke convictions in order to oppose the payment of tax or social security contributions. Thus, there was no violation of Article 9.

In terms of objections to church tax payments, the ECtHR has found that this may constitute an interference with the manifestation of religion or belief, but has generally found that such interference is permissible under Article 9.2 and so there is no violation of Article 9 (e.g. Klein v Germany)[vii].

Objections in the Healthcare Context

Unlike conscientious objection to military service and refusals to pay taxes, the ECtHR has not yet addressed many complaints concerning conscientious objection in the healthcare context. However, in the cases it has considered its approach is not markedly different to that in the cases discussed above.

Where individuals have objected to vaccination on the basis of religion or belief, the ECtHR has again explained that while Article 9 protects personal beliefs and religious creeds, and acts linked to such beliefs, it does not always guarantee a right to behave in the public sphere dictated by such a religion or belief, and the term ‘practice’ in the Article does not cover every act that is ‘motivated’ by a religion or belief. In terms of vaccinations specifically, the ECtHR has emphasised that the obligation to undergo vaccination applies to everyone regardless of their religion or belief, and so it does not constitute an interference with Article 9 (see Boffa and 13 Others v San Marino).[viii]

In cases concerning objections by medical professionals in the healthcare context, the ECtHR has adopted a similar approach. In Pichon and Sajous v France (2001),[ix] in which two pharmacists who jointly owned a pharmacy complained about their conviction for refusing to sell contraceptive pills, the ECtHR again explained that Article 9 does not always guarantee a right to behave in the public sphere dictated by belief, and that ‘practice’ does not cover every form of behaviour ‘motivated or inspired by a religion or belief’. With respect to the facts in this case, the ECtHR said that as the sale of contraceptives is legal and ‘occurs on medical prescription nowhere other than a pharmacy’, the applicants could not give precedence to their religious beliefs and impose them on others as a justification for their refusal to sell such products.[x] Furthermore, the applicants were able to manifest their religion or belief outside of work. It therefore deemed their complaint inadmissible.

In Blumberg v Germany,[xi] in which a doctor was dismissed after refusing to conduct a medical examination on his apprentice due to ‘possible bias’ and ‘a moral dilemma’, the ECtHR again repeated its principle concerning behaviour in the public sphere on the basis of religion or belief and the scope of ‘practice’ under Article 9. In this case, however, it made an important distinction and observed that the applicant was not dismissed for his ‘moral dilemma’ but because he refused to perform the examination. For the ECtHR, his moral dilemma did not constitute an ‘expression of a coherent view on a fundamental problem’;[xii] in other words, it did not find that that the action in question was a manifestation, and so the application was inadmissible.

In Eweida v UK,[xiii] the fourth applicant, Gary McFarlane who was a Relate counsellor, was dismissed for refusing to provide psycho-sexual therapy for same-sex couples. He claimed that as a Christian, who believed that homosexual activity is sinful, he could not do anything which ‘endorsed’ such activity. The ECtHR accepted that his objection was directly motivated by his Christian beliefs about marriage and sexual relationships, and that his refusal to provide counselling to same-sex couples was a manifestation of his religion or belief. It thus decided that his dismissal for refusing to provide the service did constitute an interference with this right. In considering whether the interference was legitimate under Article 9.2, the ECtHR found that the applicant had enrolled on a postgraduate training programme in psycho-sexual counselling with the knowledge that Relate operated an equal opportunities policy. Furthermore, it observed that the action taken by Relate with respect to the applicant was aimed at ensuring that the service was provided to clients without discrimination. The ECtHR explained that under Article 9.2 the State can exercise a wide margin of appreciation in deciding where to strike the balance between the rights of applicants who wish to manifest their religion or belief and the aim of employers to secure the rights of others. It concluded that in this case the State had not exceeded its margin of appreciation, and therefore found no violation of Article 9 (alone or in conjunction with Article 14).


This discussion of a sample of cases concerning conscientious objection to military service, objections to the payment of tax, and objections in the healthcare context demonstrate that the ECtHR does not have a standard approach when addressing claims concerning conscientious objection under Article 9. Sometimes the ECtHR has found that the objection in question does not constitute a manifestation of religion or belief for the purposes of Article 9, and therefore deems the complaint inadmissible. In other cases, where it does consider that the objection constitutes a manifestation of religion or belief for the purposes of Article 9, it either finds that there has not been interference with the right to manifest, or, if it does find interference, considers that it is permissible under Article 9.2. Rarely does the ECtHR find that interference constitutes a violation of Article 9.

The point is that the ECtHR can, and does, deploy a variety of approaches in complaints concerning conscientious objection under Article 9. Cases concerning conscientious objection in the healthcare context are not, to date at least, treated as ‘special cases’ by the ECtHR.

Caroline K Roberts, PhD Researcher, University of Bristol.


[i] My research focuses on the development of Article 9 jurisprudence from the 1960’s to present day (available in English and French), in which conscientious objection claims form a small part.

[ii] Grandrath v Germany (1966) 10 YBECHR 626.

[iii] Bayatyan v Armenia ECHR 2011-IV 1.

[iv] Ibid, 4.

[v] C v UK (1983) 37 DR 142.

[vi] Bouessel du Borg v France App no 20747/92 (Commission Decision, 8 February 1993).

[vii] Klein v Germany App no 10138/11 and 3 others (ECtHR, 6 April 2017).

[viii] Boffa and 13 Others v San Marino (1998) 92-B DR 27.

[ix] Pichon and Sajous v France ECHR 2001-X 381.

[x] Ibid, 388.

[xi] Blumberg v Germany App no 14618/03 (ECtHR, 18 March 2008).

[xii] Ibid.

[xiii] Eweida v United Kingdom ECHR 2013-I 215.