Abstract
Conscience and conscientious objections are important issues in medical law and ethics. However, discussions tend to focus on a particular type of conscience-based claim. These types of claims are based upon predictable, generalizable rules in which an individual practitioner objects to what is otherwise standard medical treatment (for example, the objections recognised in the Abortion Act). However, not all conscience based claims are of this type. There are other claims which are based not on an objection to a treatment in general but in individual cases. In other words, these cases may involve practices which the doctor does not usually object to but does so in this instance on these facts. This paper will explore these types of conscience-based claims in two ways. First, it will explore whether these types of individualised conscience-based claims are really conscience claims at all. Second, it will explore how these claims interact with the other sorts of judgements we expect doctors to make in these cases (things like professional standards, clinical judgment and the best interests of the patient).
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Notes
I doubt whether McLeod’s or Baylis’ criticisms are really about the conception of conscience or serve as a persuasive refutation of the dominant view of people like Childress [6] or Wiccair [26]. Nothing in the writings of either Childress or Wiccair indicate they would object to the notion that the moral principles which form the foundation of a conscience claim are at least partially determined by social factors.
Baylis [4] argues that conscience claims need to be ‘thoughtful, reflective, inner deliberations’, but I disagree. We often use conscience as what some refer to as a ‘moral nose’ [10] or ‘gut feeling’. Indeed, people object to conscience because it is not necessarily based upon reason. As a consequence, it need not be thoughtful at least if we mean a reflective moral process must happen before the decision arises. While we can, and should, require that individuals be able to articulate after the fact why they believe their decision to be a conscience-based one, it is not necessary to require it beforehand. Fovargue and Neal [9] 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.
I disagree with Fovargue and Neal [9] 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’. Forewarning ought to be done in situations where it is possible but this is unlikely in the ‘too far’ types of cases which are the focus of this article.
I say ‘at least’ because there are types of reason which are possible but I will exclude from this analysis. This would include things like personal preferences and biases, views toward risk-taking, etc. which might impact upon decisions.
Amputee identity disorder is when an individual believes that a limb that forms part of their body does not belong to them. A person with this condition might feel, for instance, that their right arm should not be there.
There are semantic difficulties in a legal analysis which includes this kind of claim of best interests. In law, best interests only apply to those who lack capacity [17]. The best interests test, as a legal doctrine, would not apply to competent patients for whom the applicable idea is consent and autonomy. However, in this section, I mean a more general understanding of what is best for the patient whether or not they have capacity. It would thus include both incompetent and competent patients.
Dame Elizabeth Butler-Sloss P. has argued that ‘logically’, the best interests test ought to only give one answer. In Re S [21] at 27–28. This is disputed by, among others, Holm and Edgar [11]. Even if there is one logical best interests answer for each individual, there is no guarantee that everyone would agree as to what that is.
This, for example, appears to be the reasoning of doctors and other healthcare workers involved in things like the euthanasia underground [15].
There are, of course, macro-level options like distributive justice or resource management which are available to determine the best way forward in cases. However, these kinds of considerations are supposed to only apply in general and not in the context of particular patients.
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I would like to thank John Coggon, Sara Fovargue, Clark Hobson, José Miola, Nicky Priaulx, Robert Lee, Gordon Woodman, and Richard Young for helpful comments on earlier drafts of this paper. The usual disclaimers apply.
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Smith, S.W. Individualised Claims of Conscience, Clinical Judgement and Best Interests. Health Care Anal 26, 81–93 (2018). https://doi.org/10.1007/s10728-016-0330-6
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DOI: https://doi.org/10.1007/s10728-016-0330-6