Regulator's proposal to remove pharmacists' conscience
rights is unethical, unnecessary and quite possibly illegal
Christian Medical Comment,
17 February, 2017
Reproduced with permission
Should pharmacists be forced to dispense drugs for what
they consider to be unethical practices – like emergency
contraception, gender reassignment, abortion and
Or should they have the right to exercise freedom of
conscience by either referring to a colleague or opting
General Pharmaceutical Council (GPhC), the
independent British regulator for pharmacists, pharmacy
technicians and pharmacy premises, is proposing to
replace the current 'right to refer' with a 'duty to
The Council calls this 'person-centred' care.
'Person-centred care' which puts the dignity and best
interests of the client first is, of course, crucial and
at the very heart of true professionalism.
the Council then goes on to frame this care in terms of
a universal right for clients to 'access' legally
prescribed drugs and devices. Pharmacists would thereby
be pressured to comply or risk disciplinary procedures
and/or possible loss of employment. Potential trainees
could be dissuaded from pursuing a career in pharmacy
The consultation on the draft proposal is open until 7
March 2017 (background
here; full consultation document
here - the response form is on pages 23-30
and is summarised on p31).
Pharmacists who believe that human life should be
respected from the time of fertilisation will generally
object to dispensing potentially abortifacient drugs
like levonelle and
lthough marketed as 'emergency
contraception' or the 'morning-after pill', these drugs
are known in some cases to act by preventing the
implantation of an early embryo and causing, in effect,
an early abortion.
Currently pharmacists have a right to refer these cases
to another pharmacy or colleague, but under the new
draft guidance, which the GPhC admits represents 'a
significant change from the present position' this right
would be removed.
All health professionals are currently protected by a
conscience clause in the Human Fertilisation Act
1990 from having to participate in 'any activity'
governed by that Act. So, for example, if they have a
moral objection to disposal of, or experimentation upon,
human embryos, they do not have to take part.
But ironically, no such statutory conscience protection
exists for those 'contraceptives' which act by killing
The Abortion Act 1967 has a conscience clause which
allows health professionals to abstain from
'participation' in abortion. However, it also does not
cover abortifacient contraceptives. Its scope has also
recently been narrowed by a
Supreme Court judgment so that it probably does not
now protect pharmacists from being forced to supply
drugs used in medical abortions either.
Highly contentious gender reassignment procedures,
involving hormones to bock puberty in children, or to
aid transsexuals to 'transition' to the opposite gender,
are another area where the new regulations will put
pharmacists under pressure to comply.
Assisted suicide and euthanasia are currently not legal
in Britain, but were they to become so, this could be
yet another situation where the new proposed guidance
would leave pharmacists exposed.
Freedom of conscience has been a core ethical value,
foundational to healthcare practice as a moral activity,
Hippocratic Oath to the General Medical Council's
Good Medical Practice.
The right of
conscientious objection is not a minor or peripheral
issue. It goes to the heart of medical practice as a
moral activity. It helps to preserve the moral integrity
of the individual clinician, preserves the distinctive
characteristics and reputation of medicine as a
profession, acts as a safeguard against coercive state
power, and provides protection from discrimination for
those with minority ethical beliefs.
Most people can understand and respect the right of
health professionals not to be involved in activities
which they regard as abhorrent – obvious examples in
other jurisdictions in which doctors have been complicit
include female genital mutilation, punitive amputation,
capital punishment or organ harvest from prisoners or
But equally we need to recognise that many healthcare
professionals in Britain regard such practices as
abortion, assisted suicide, gender reassignment or
embryo disposal or experimentation to be similarly
Pharmacists are healthcare professionals in their own
right. Accordingly they deserve to be treated by their
regulators with the respect due to their professional
status. This latest proposal does not do that.
The contribution of community pharmacists to the
provision of primary care is being
actively promoted by the profession. Given that
pharmacists are now taking on many of the roles once
seen as the preserve of doctors, the GPhC should surely
be protecting their freedom of conscience in a way
that shown to doctors by the GMC.
There are simply better ways in a democratic society to
ensure that freedom of conscience is respected whilst
still enabling people to access services to which they
have a legal right.
In this case there are at least three alternatives
available to the GPhC.
First would be to leave the current guidance, which
grants a right to refer, unchanged. Whilst this does not
give full freedom, as many would regard referral as
involving a degree of complicity, it does in practice
give enough wiggle room for pharmacists who have a
conscientious objection to dispensing certain drugs to
avoid direct involvement. It has served the profession
well up until now.
Second, the GPhC could follow the example of the GMC,
the doctors' regulator.
GMC guidance (para 8) permits doctors to 'opt out of
providing a particular procedure because of [your]
personal beliefs and values, as long as this does not
result in direct or indirect discrimination against, or
harassment of, individual patients or groups of
patients'. In such situations, a doctor must ensure the
patient understands her right to see another
practitioner and has the necessary information to
exercise that right.
Third, the GPhC could follow the example of the
pharmacists' professional body, the Royal Pharmaceutical
Society (RPS), in a
policy statement they drew up in 2013 to preserve
freedom of conscience in the event of assisted suicide
being legalised. This required pharmacists to 'opt in'
by placing their names on a register of those willing to
dispense barbiturates for assisted suicide. What is to
stop a similar opt-in system operating for the practices
I have mentioned above, rather than making a blanket
imposition on all pharmacists?
If instead the GPhC ignores these solutions and presses
ahead with imposing a 'duty to dispense' it will not
only be running roughshod over the professional status
of pharmacists, but could also be opening itself up to a
There is already a substantial body on law on conscience
protection in British and European Law.
Article 9(1) of the
European Convention of Human Rights (ECHR) provides
a right to freedom of 'thought, conscience and
religion'. Whilst this is not absolute, and needs to be
balanced against other democratic rights, any
intervention must be shown to be both necessary
and proportionate. It is hard to see how this move by
the GPhC fulfils either of these requirements.
The Grand Chamber of the European Court of Human Rights
affirmed rights of conscience for sincerely held
religious and moral beliefs as falling within the gambit
of Article 9 (ECHR, Bayatan v. Armenia [GC], (2012) 54
E.H.R.R. 15.) They base their reasoning on the premise
that a refusal to allow conscientious objection fails to
strike a proper balance between the interests of society
as a whole and the fundamental rights of the individual;
providing rights of conscience ensures a cohesive and
stable pluralism and promotes religious harmony and
tolerance in society (Id.at § 124, 126).
Equality Act 2010, which is the sole legal precedent
that the GPhC quotes in their consultation document in
support of their proposal, lists nine protected
characteristics, one of which is 'religion and belief'.
It is therefore almost inconceivable that this draconian
draft proposal will not be challenged in court by an
aggrieved individual or organisation.
But it should not come to that. It is just not worth the
time, energy and expense and can be avoided.
There is little real evidence of widespread complaints
by clients denied access to drugs under the current
council meeting notes from 12 April 2012
specifically state that no data is collected and mention
that only 'a small number of complaints' relating
to 'fitness to practice' are received annually. We would
expect complaints specifically about FOC to make up only
a tiny subset of these.
The regulator, it seems, is using a sledgehammer to
crack a walnut.
The GPhC's proposal to remove pharmacists' conscience
rights is disproportionate, unethical, unnecessary and
quite possibly illegal.
For the sake of professional freedom and reasonable
accommodation, essential in a pluralist multi-faith
democracy, let's hope that they chose instead a more
flexible, tolerant, respectful and eminently sensible