“A ‘shield’ for clinicians, not a ‘sword’ against patients”

A clinician’s refusal to perform medical services due to conscientious objections usually leads to a conflict with the patients’ interests. In his lecture on Monday, Professor James F. Childress (University of Virginia) examined the characteristics of such refusals and evaluated a catalogue of measures for striking a balance between “Respecting conscience [and] protecting patients”. He emphasized that creative accommodation procedures should be found in advance, but also there must be enforceable ethical limits of refusals. Conscientious objections should never lead to obstructing the patients’ will, so the clinicians should have the “right to step away, but not to step in the way”.

There is a wide variety of actual cases of conscientious refusal: among others refusal to perform abortions or sterilizations, refusal to participate in assisted dying, or refusal to provide reproductive services to single persons, to homosexuals, or to unmarried couples. Whereas some of these refusals are considered legally and professionally acceptable, others are not and may be penalized. However, they are all characterized by an unresolved tension between respect for the conscience of health care professionals and the protection of patients and their interests. In his lecture, Childress posed the fundamental ethical question: Should the state, society, institutions and professions exempt conscientious objecting health professionals from performing or providing legal and ordinarily expected but ethically contested services, procedures or products?

In order to explore the question, Childress examined in detail the nature, the contours and the scope of conscientious refusals. Claims of conscience may for instance be spurious, thus masking other interests. Furthermore he pointed out that religious conscience has no privilege over non-religious or secular conscience, although conscientious refusals seem to be more common among religious people as statistics reveal. Moreover there is a danger of selective conscientious objection regarding groups of patients, e.g. homosexuals, thus leading to unjust discrimination. Lastly Childress showed that there also is an extensive scope of participation in others’ wrong-doing.

Striking a balance

Returning to the central question about responding to conscientious refusals, Childress presented several commonly used metaphors, e.g. balancing or finding middle ground, which attempt to include both the interest of health care providers and patients’ interests. But these metaphors, apart from being a rejection of the two extreme positions, do not provide clear and precise guidance. Childress therefore evaluated several concrete proposals for striking a balance between both interest sets, which included among others the avoidance of specific medical professions by conscientiously objecting people, the obligation of giving advance notice about known objections, or the referral or transfer of patients to non-objecting professionals in case of refusal.

All proposals are associated with a number of problems, as Childress worked out. For instance the avoidance strategy fails when the legality of medical services, as those of abortion, changes through time. As well giving advance notice to the patients or referring them, both seem impractical in cases of emergency. Nevertheless, all these approaches should be taken into account, as there is a need to exercise the moral imagination – a creative search for possible ways to effectively protect both clinicians’ conscience and patients’ interests. Childress furthermore stressed a need for preventive ethics, which help to develop mechanisms and systems in advance of conflicts. However, he emphasized that different ethical limits of such refusals should be enforceable.

Finally, Childress pointed out that there is a crucial distinction between tolerable conscientious refusal – to keep oneself away from ethically controversial services – and illegitimate conscientious obstruction – to prevent patients from obtaining ethically controversial services. Thus he closed with a recent wording by Douglas White and Baruch Brody that conscientious refusal should be a “shield” for clinicians, not a “sword” against patients.