Jonathan Montgomery, Forthcoming in Medical Law Review (2015), Final Version as submitted
1
CONSCIENTIOUS OBJECTION:
PERSONAL AND PROFESSIONAL ETHICS IN THE PUBLIC SQUARE
Summary
English law expects health professionals to have, and act upon, consciences, but formal conscience clauses are not the main legal
recognition of this expectation. Rather, they should be regarded as an anomaly with roots in very specific political settlements between
society and health professions, whose legitimacy is historically contingent, and as aspect of the ‘price’ to be paid for securing services.
There are sound reasons for the protection of conscientious discretion as an aspect of professional identify, but specific rights of personal
conscientious objection are difficult to reconcile with legitimate public expectations of comprehensive and non-discriminatory services.
Professional identities include moral commitments, such as the privileging of patient safety over administrative convenience. These should
not be permitted to be overridden by personal moralities during the course of service delivery (as opposed to debating in the abstract
what the proper courses of action should be). Consequently, formal conscientious objection clauses should be reduced to a minimum and
regularly revisited. It is generally more satisfactory to address clashes between the personal moralities of professionals and public
expectations through more flexible means, enabling accommodation of a plurality of views where possible but acknowledging that this is a
matter of striking an appropriate balance. Employment law rather than health care law provides the best mechanism for regulating this
process.
Key Words: Abortion; Conscientious Objection; Personal Beliefs; Professional Ethics; Professional
Discretion; Social Contract
This paper is concerned with whether rights of conscientious objection vested in professionals are
best seen as a private or public issue, and the significance of this distinction. It reflects on how issues
of professionalism are connected with matters of conscience. I argue that the law expects health
professionals to have, and act upon, consciences, but that formal conscience clauses are not the
main legal recognition of this expectation. Rather, they should be regarded as an anomaly with roots
in very specific political settlements between society and health professions, whose legitimacy is
historically contingent. To assess whether they continue to be appropriate, an account needs to be
given of the difference between the roles of both professional and personal values. I shall argue that
there are sound reasons to support the protection of conscientious professional discretion, but this
is different from the debate that is needed about ‘rights of conscientious objection’. Such specific
rights are difficult to reconcile with legitimate public expectations of a service, especially in a system
of socialised medicine, and it is argued that they should be revisited. The specific rights are also
somewhat arbitrary as protections of personal conscience, which needs to be recognised on a wider
basis, although less rigidly. I shall suggest that the decision of the UK Supreme Court in Greater
Glasgow Health Board v Doogan is consistent with this approach, and seeks to limit the scope of
rights to conscientious objection under the Abortion Act 1967. It does so while also diverting
consideration to the wider issues of balancing religious freedoms with service needs within
employment law.
1
The importance of the point that the legal provisions that are being discussed in this article are
historically and socio-politically specific can be seen in some salient differences between the way in
1
[2014] UKSC paras [23]-[27], noting issues that were ‘distractions’ for the disposition of the case, but
anticipated to provide a way forward for individuals in the future, see para. [24].
Jonathan Montgomery, Forthcoming in Medical Law Review (2015), Final Version as submitted
2
which issues around conscientious objection arise in England, Scotland and Wales when compared
to discussion in the international bioethics literature.
2
The Abortion Act 1967 does not extend to
Northern Ireland, and the legal position there is not specifically addressed in this piece.
3
The first key
difference between the legal position under consideration here and discussions based on the law in
other jurisdictions is that it is common for that literature to examine conscientious objection in
relation to procedures beyond abortion, and in particular emergency contraception. This is not the
case in the UK, where rights of conscientious objection are limited to statutory provisions in relation
to abortion, embryo research and the provision of fertility services.
4
Further, those rights are not in
fact defined by reference to professional status, although the interpretation of their limited scope
means that they will most commonly be claimed by health professionals. In addition, while there is
professional guidance that explores a wider scope for conscientious objection, it makes it clear that
this is subject to employment obligations and is understood to be in a very different legal category to
a ‘right’ to opt out of services.
5
This draws attention to a second feature that is different from some jurisdictions; the employment
status of doctors. In many jurisdictions, doctors have privileged status and do not find themselves in
a ‘master and servant’ relationship with the institutions in which they work. In private medical care
in the UK, this is often the case; visiting medical staff in independent health providers in the UK will
not normally be employees, although this is not automatic and will depend on the nature of the
contractual arrangements in question.
6
However, within the hospital sector of the National Health
Service, where the vast majority of doctors work, medical practitioners are employees in the same
way as other staff and subject to the same fundamental principles of employment law,
7
including the
expectation that they follow ‘lawful and reasonable instructions’. The idea that hospital doctors
were independent contractors over whom the hospital had limited control did not survive the
creation of the NHS.
8
The language of ‘independent contractor’ survives in relation to general
medical practice because GPs are not employees of the NHS. However, they deliver services under a
statutory contract, with core services that all provide, with provision to extension to additional
services against commissioners’ specifications. This does not permit doctors to pick and choose
which services they are prepared to provide within those specified terms. Failures to supply the
services would be a breach of these contracts. This means that a number of issues that arise in non-
socialised medicine systems about professional autonomy, including conscientious objection, do not
manifest themselves in the same way in the NHS.
For similar reasons, those problems that arise in systems where hospitals are managed by
organisations that object to the provision of legally permissible services are less apparent in the UK.
The vast majority of health care is funded, although not necessarily provided, through the NHS
2
For an overview of this literature, see L Kantymir and C McLeod ‘Justification for conscience exemptions in
health care’ (2014) 28(1) Bioethics 16-23.
3
See Family Law Planning Association of Northern Ireland v Minister of Health, Social Services and Public Safety
[2003] NIQB 48 and Re Society for the Protection of Unborn Children's Application for Judicial Review [2009]
NIQB 92 (QBD). A further judicial review is underway at the time of writing, see Richard Martin, ‘Northern
Ireland’s Human Rights Commission Granted Leave for Judicial Review to Challenge the Country’s Near-Blanket
Ban on Abortion’ (OxHRH Blog, 9 February 2015), http://ohrh.law.ox.ac.uk/northern-irelands-human-rights-
commission-granted-leave-for-judicial-review-to-challenge-the-countrys-near-blanket-ban-on-abortion-2/ (last
accessed 24 February 2015).
4
Abortion Act 1967, s 4; Human Fertilisation and Embryology Act 1990, s 38.
5
This is discussed below, see the text at footnote 49.
6
Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005.
7
For recent cases, see McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031; Chakrabarty v
Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB).
8
For discussion of this and related issues about the legal structure of medical power within the demarcations
of health professional work, see J Montgomery ‘Doctors’ Handmaidens: the legal contribution’ in S McVeigh
and S Wheeler (eds) Health, Health Regulation and the Law (1992) pp 141-68.
Jonathan Montgomery, Forthcoming in Medical Law Review (2015), Final Version as submitted
3
against standard service specifications, often in the context of clinical guidelines established by the
National Institute for Clinical and Care Excellence. In the case of services for the termination of
unwanted pregnancy, the obligation to commission services falls on Clinical Commissioning Groups
each of which must commission services, including abortion services, ‘to such extent as it considers
necessary to meet the reasonable requirements of the persons for whom it has responsibility’
(usually patients registered on the lists of GP practices which are members of the CCG, but in
relation to emergency care ‘every person present in the area’).
9
There is a model ‘integrated sexual
health services: national service specification’ that explains what is expected to be commissioned
and includes access to abortion services.
10
The NHS system therefore means that the problems faced
in predominantly private health systems, about securing access to abortion services from service
providers who are reluctant to offer them, do not manifest themselves in the UK context.
These are distinctive features of the UK health system that need to be recognised before we turn to
the statutory conscience clauses. The nature of socialised medicine as manifest in the NHS is thus
built on a vision of comprehensive services, framed by the NHS Constitution in terms of a social
contract between citizens and the state, into which health professionals are bound.
11
The usually
vague idea of a contract between the state and those professions, under which status and privilege
is conferred in return for the provision of services, has a very concrete reality in the NHS, with
collective employment agreements for professional staff.
12
The most important feature of the
settlement between the state and the professions for understanding the approach to conscientious
objection, however, is the general approach of English law to clinical discretion.
Part I: Law and Professional Discretion: the conscientious exercise of
power
English law has framed ‘objection’ as a key professional role. It has consistently rejected the idea
that health care law is a matter of consumer rights, in which patients demand and receive the
service that they want. This is in part a consequence of the fact that most health care in the UK is
provided through state commissions and the vast bulk of English health law is concerned with NHS
treatment.
13
Even the concept of ‘prescription-only medicine’,
14
generally justified in terms of the
need to restrict access to dangerous substances to situations where they have been judged clinically
appropriate by a duly accredited health professional,
15
has been extended in popular usage into a
9
NHS Act 2006, s 3 (as amended). See also ‘The Functions of Clinical Commissioning Groups (updated to reflect
the final Health and Social Care Act 2012)’ available at http://www.england.nhs.uk/wp-
content/uploads/2012/06/ccg-functions-document-june2012.pdf (last accessed 24 February 2015).
10
Available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/210727/National_integrated
_sexual_health_services_specification_2013.rtf (last accessed 24 February 2015).
11
See Health Act 2009, s1, NHS Act 2006 (as amended) ss 1B, 13C, 14P and the documents themselves at
https://www.gov.uk/government/publications/the-nhs-constitution-for-england (last accessed 24 February
2015).
12
See J Montgomery, ‘The virtues and vices of professionalism’. In D Bhugra & A Malik (eds) Professionalism in
Mental Healthcare: Experts, Expertise and Expectations (2011) 17-31, esp. 25-28.
13
For a discussion of the ability of this universal system to accommodate varieties of beliefs, see J V McHale,
‘Faith, Belief, Fundamental Rights and Delivering Health Care in a Modern NHS: An Unrealistic Aspiration?’
Health Care Analysis (2013) 21:224-236.
14
Medicines Act 1968, s 58, 58A; see E Jackson, Law and Regulation of Medicines (2012) 92-3.
15
Human Medicines Regulations 2012, SI 212/1916, Reg 214.
Jonathan Montgomery, Forthcoming in Medical Law Review (2015), Final Version as submitted
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funding mechanism – the prescription that ensures that the NHS pays for treatment. These two
intertwined usages of ‘prescription’ both share a key characteristic; the professional plays a
gatekeeping function. Thus, the professional is expected to object to ‘inappropriate’ access to the
treatments sought.
In a very clear assertion of this approach, Lord Donaldson summarised the position as follows:
The doctors can recommend treatment A in preference to treatment B. They can also refuse
to adopt treatment C on the grounds that it is medically contra‑indicated or for some other
reason is a treatment which they could not conscientiously administer.
16
This seems to identify conscience as an independent reason for declining to give patients what they
seek. It also draws on the tacit understanding that runs through English law that health professionals
are ethically as well as scientifically orientated. This is a view held generally by the judiciary, but
perhaps most explicitly set out in judgments from Lord Donaldson. It leads to an approach premised
on the integration of medical ethics and the law, in which professional discretion is protected in
order to ensure that professional morality can prevail and not merely because of deference to
technical skill.
17
From this perspective, it does not seem inappropriate to leave areas for professional
but not legal regulation. Lord Donaldson extolled the virtue of the position he crafted on concurrent
consents in relation to treatment decisions for young adults as ensuring that ‘the doctor will be
presented with a professional and ethical but not a legal problem.’
18
Indeed, the judicial defence of
some of the implications of this view was that ethical restrictions would ensure that doctors
refrained from abusing the licence that the law permitted, for example in the hypothetical situation
of the law permitting an unwanted abortion.
19
The most direct judicial discussion of this general position is probably that in the Burke litigation.
Leslie Burke challenged part of the GMC guidance on Withholding and Withdrawing Life-prolonging
Treatments: Good Practice in Decision-making that made it a matter of medical discretion whether
artificial nutrition and hydration should be offered to patients. Although Burke succeeded at first
instance,
20
the Court of Appeal made it clear that doctors were expected to review requests by
patients for particular treatments against their clinical judgment about what would provide overall
clinical benefit for them, but the decision what to offer remained a professional one:
If, however [the patient] refuses all of the treatment options offered to him and instead
informs the doctor that he wants a form of treatment which the doctor has not offered him,
the doctor will, no doubt, discuss that form of treatment with him (assuming that it is a form
of treatment known to him) but if the doctor concludes that this treatment is not clinically
indicated he is not required (i.e. he is under no legal obligation) to provide it to the patient
although he should offer to arrange a second opinion.
21
The Court of Appeal in this case did not allude to any expectation of bringing morality to bear,
merely noting the importance of accepting clinicians’ rights to make judgments on likely clinical
benefit.
16
Re J [1991] 3 All ER 930, 934.
17
See J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26(2) LS 185-210, esp. 199-206.
18
Re R [1992] Fam 11, 22.
19
See Re W [1993] Fam 64, see Lord Donaldson at 79 and Balcombe at 89-90. In Re X (a child) [2014] EWHC
1871 (Fam), the patient’s consultant indicated ‘that it would not be right to subject X to a termination unless
she was both "compliant" and "accepting". This could be interpreted as evidence to support the assumption
that medical ethics would prevent abuse of the potential for parental consent. Munby P may have regarded
this need for acceptance as a legal requirement, see para [12].
20
R (Burke) v General Medical Council [2004] EWHC 1879 (Admin).
21
R (Burke) v General Medical Council [2005] EWCA Civ.1003, para [50].
Jonathan Montgomery, Forthcoming in Medical Law Review (2015), Final Version as submitted
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In AVS (by his litigation friend CS) v A NHS Foundation Trust the reference to conscience was
restored, but with an implicit, subtle, but important difference of emphasis - ‘It is trite that the court
will not order medical treatment to be carried out if the treating physician/surgeon is unwilling to
offer that treatment for clinical reasons conscientiously held by that medical practitioner.’
22
The
difference here is that the reference to conscience is not to a separate and personal value system of
the clinician, but to the fact that the opinion on the clinical reasons for treatment was
‘conscientiously held’. This is more an issue of the good faith of the professional than conflicting
value systems, a matter that will be seen to have important ramifications for the consideration of
terms of the Abortion Act 1967 later in this piece.
This recognition of that judges should not override professional judgments has been elevated into
what has become an established judicial practice and almost a point of legal principle:
To use a declaration of the court to twist the arm of some other clinician, as yet unidentified,
to carry out these procedures or to put pressure upon the Secretary of State to provide a
hospital where these procedures may be undertaken is an abuse of the process of the court
and should not be tolerated.
23
More recently, the Supreme Court in Aintree NHST v James has reiterated this general position that
courts, like patients, do not have the power to require doctors to provide specific treatments, only
to accept or reject those which doctors think are clinically indicated.
24
There seems no indication in
the early cases interpreting the significance of the Aintree decision of judicial anxieties that suggest a
desire to change this approach.
25
It seems clear, therefore that the judiciary believes that it is right to protect clinical freedom. This
pattern is not inadvertent but is a deliberately chosen position. Further, this approach is, at least in
part, built on a belief the exercise of medical professional discretion is informed by moral
considerations. Jose Miola has shown that this does not lead to a rule based system, in which
professional norms operate in a quasi-legal manner to provide a single ‘right-answer’, but rather are
conflicting and indeterminate.
26
This analysis does not undermine the picture painted above as a
description of judicial attitudes. However, it raises important questions about its normative power
and the legitimacy of law based on these premises.
Some of these concern the difficulties that the protection of conscientious discretion creates for
holding professionals to account for discriminatory, or otherwise unacceptable, patterns of
behaviour. Thus, permitting a high degree of discretion enables the prejudices of professionals on
‘deserving’ and ‘underserving’ supplicants for services to go unchecked. The ‘tired housewife’ might
get easier access to abortion services than the ‘tart’ who is perceived to be reaping what she
permitted to be sowed.
27
From a different perspective in the battle over abortion rights, it is
asserted that the need to demonstrate breaches of ‘good faith’ permits doctors to offer ‘abortion on
demand’ and bypass the regulatory safeguards with relative impunity. This interpretation of the
impact of protecting conscientious discretion was no doubt fuelled by the explanation given by the
Director of Public Prosecutions for not prosecuting doctors ‘exposed’ in a Daily Telegraph ‘sting’ in
which journalists presented seeming to make a request for a termination of pregnancy in order to
22
[2011] EWCA Civ 7, para [35].
23
Ibid. [38].
24
Aintree UH NHSFT v James [2013] UKSC 67, approving the earlier statements to this effect by Lord Donaldson
in Re J [1991] Fam 33, at 48, and Re J [1993] Fam 15, at 26-27.
25
United Lincolnshire Hospitals NHS Trust v N (Official Solicitor) [2014] All ER (D) 251 (Jul), para [53].
26
J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (2007). See also J Harrington, ‘Of Paradox
and Plausibility: The Dynamic of Change in Medical Law’ (2014) 22(3) Med Law Rev 305-24.
27
See Sally Sheldon’s Beyond Control: Medical Power and Abortion Law (1997) esp. chapter3 – ‘Tarts and Tired
Housewives’.