Medicine, Strasbourg, and conscientious objection
European Court of Human Rights decision
BMJ Group Blogs
Reproduced under Creative Commons license*
Julian Sheather*
Conscientious objection is a live issue in medicine.
. . Given the
prevailing political pluralism-given the co-existence in our culture of
different value systems-to what extent should medicine accommodate such
objections? Should those whose consciences differ be treated differently?
What forms of conscientious objection should be tolerated and on the basis
of what criteria?
The media made quite a fuss recently about the European Court of Human
Rights finding that British Airways had unfairly discriminated against an
employee, Mrs Eweida, in refusing to let her visibly wear a crucifix.
Apparently David Cameron tweeted his delight with the judgment. But by the
time the case reached Strasbourg, British Airways had long rendered its
uniform policy more permissive. And the background clash of rights
notwithstanding, the freedom to wear a small crucifix never seemed to me
wildly at odds with the freedom of a corporation to manage its image: a
no-brainer for reasonable accommodation surely? More interesting in some
ways were the cases that fell. Ms Chaplin is a geriatric nurse. She was
prevented from wearing a necklace-in her case a crucifix-on health and
safety grounds-her safety, the safety of patients-and complained of
discrimination. Mr McFarlane is-or was-a Relate counsellor. His Christian
beliefs prevented him from providing psycho-sexual counselling to same-sex
couples and so he lost his job. Among the reasons given were that he would
have known before he took the job that it might involve such work. Slightly
to my disappointment, the court didn't linger over the ethical conflicts,
merely finding that the balancing of these freedoms or interests fell within
the UK's "margin of appreciation:" that the UK was better placed than
Strasbourg to assess whether such restrictions were necessary and
proportionate.
Mrs Ladele's case was arguably the most challenging. A devout Christian,
she held that same-sex civil partnerships were contrary to God's law. In
2002 she became a registrar of births, deaths and marriages at Islington
Council. In 2005 the Civil Partnership Act 2004 came into force, providing
for the legal registration of same-sex civil partnerships. Initially the
Council was flexible, permitting her to share work with colleagues so she
did not have to register same-sex partnerships. But there were rota
difficulties, and homosexual colleagues complained of discrimination and
victimisation. Her appeals through various domestic tribunals were
unsuccessful. Given that Islington was explicitly committed to targeting
"discrimination based on age, disability, gender, race, religion and
sexuality…" this looks like one of those dilemmas dreamt up specifically to
twit liberals. Why is it more acceptable to discriminate against Mrs
Ladele's religious beliefs than those who seek same-sex civil partnerships?
How should we proceed where the beliefs of protected groups are
incompatible? The Employment Appeal Tribunal held that "…the fact that Ms
Ladele's refusal to perform civil partnerships was based on her religious
view of marriage could not justify the conclusion that Islington should not
be allowed to implement its aim to the full, namely that all registrars
should perform civil partnerships as part of its Dignity for All policy."
Two judges disagreed with the majority view in Strasbourg. In a
fulminating opinion judges Vucinic and De Gaetano held that, "given the
cogency, seriousness, cohesion, and importance of her conscientious
objection…it was incumbent upon the local authority to treat her
differently from those registrars who had no conscientious
objection…instead of practising the tolerance and 'dignity for all' it
preached, the Borough of Islington pursued the doctrinaire line, the road of
obsessive political correctness."
The obligation to treat Mrs Ladele differently nicely invokes Aristotle's
conception of justice as involving treating like cases alike and unlike
cases differently, in accordance with the relevant distinctions between
them. Justice does not require that everyone is treated the same. Consider
taxation: taking the same amount from everyone would certainly be treating
them the same, but unless you are a radical egalitarian it would hardly be
treating them justly, given the existence of vast income differentials.
Conscientious objection is a live issue in medicine. Recent research
suggests that, given the opportunity, significant numbers of medical
students would seek to exercise a conscientious objection. This could extend
to a refusal to be involved in treating patients of the opposite sex, or
patients whose ill health arises from alcohol or tobacco use. Given the
prevailing political pluralism-given the co-existence in our culture of
different value systems-to what extent should medicine accommodate such
objections? Should those whose consciences differ be treated differently?
What forms of conscientious objection should be tolerated and on the basis
of what criteria?
To an extent we already have practical answers to some of these
questions. The law provides for a conscientious objection in relation to
abortion and some aspects of fertility treatment. The GMC takes a permissive
approach: doctors can decline to provide any treatment to which they are
opposed, as long as there is time for others to intervene and the patient is
not disadvantaged. The GMC is less liberal with medical students, requiring
them to fulfil the core obligations of the medical curriculum. The BMA,
whose guidance is advisory, recommends doctors restrict their objections to
those protected in law and to withdrawing life-sustaining treatment from
adults lacking capacity in cases where another doctor is willing to take on
the patient's care.
Given this spread of opinion, and given the importance of the issues, is
there anything we can identify in the way of guiding principles? This is
probably one of those areas that will remain shy of exact distinctions, but
a couple of things come to mind. The first is to ask whether and to what
extent the exercise of a conscientious objection is compatible with the
purposes of medicine. And the second is whether the issue in hand achieves a
certain level of that "cogency, seriousness, cohesion, and importance."
Although again neither of these is going to give us exact distinctions and
precise answers they would nonetheless support a distinction between an
objection to abortion and an objection to treating or investigating patients
of the opposite gender. Not many doctors are called upon to perform
abortions, but the majority will examine and treat patients of the opposite
sex. The latter looks like it is seriously in conflict with the proper
purposes of medicine. And abortion involves the destruction of a biological
human life. For those who believe that moral value arrives at conception,
abortion is a very grave act indeed. It is difficult to see how treating
somebody of the opposite gender could achieve the same level of seriousness.
Julian Sheather is ethics manager, BMA. The views he
expresses in his blog posts are entirely his own.
