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, 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, 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
 JV McHale, ‘Conscientious objection and the nurse: A right or a privilege?’ (2009) 18 British Journal of Nursing 1262.
 DW Brock, ‘Conscientious refusal by physicians and pharmacists: Who Is obligated to do what, and why?’ (2008) 29 Theoretical Medicine and Bioethics 187.