Voices of Discontent? Conscience, Compromise and Assisted Dying
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VOICES OF DISCONTENT? CONSCIENCE, COMPROMISE AND ASSISTED DYING
Richard Huxtable and Alexandra Mullock
Abstract If some form of assisted dying is to be legalised, we are likely to hear voices of discontent, not least from the medical profession and some of its members, who might be expected to provide the service. The profession generally favours a position of opposition, premised on an ethic of ‘caring not killing’, which might be said to convey its ‘professional conscience’. There will, of course, also be individual conscientious objectors. In this article, we initially explore the nature and sources of conscience and we argue that conscience does merit respect. We nevertheless also recognise that professionals – qua professionals – are bound to serve their patients, some of whom will want (and may be entitled to) that which their doctors do not wish to provide. Reflecting on the different values in issue, we suggest that there is a case for principled compromise, which would afford professionals a limited right to conscientiously object, whilst also protecting patients. We then relate these reflections to assisted dying specifically. In the absence of any definitive steer from the purported integrity of medicine, we suspect that the profession could adopt a neutral stance on this divisive issue. We nevertheless anticipate individual objections if the law does move to embrace assisted dying, and we argue that such objections should be respected, according to the terms of the compromise model we defend.
I. INTRODUCTION
If English law were to allow some form of assisted dying, it seems likely that physicians would assume a pivotal role, for example, in assessing patients’ requests and facilitating – or providing – the assistance.1 Unsurprisingly, the profession’s voice is particularly audible in ongoing debates about whether the practice should be allowed. Professional bodies like the British Medical Association and the Royal Colleges (with the exception of the Royal College of Nursing, which has adopted a neutral stance) are opposed to legalisation. Depicting medical practice as incompatible with helping patients to die, and favouring an ethic of ‘caring not killing’, this opposition appears to present a major obstacle to reform.2 According to the General Medical Council, in its evidence to the 2005 House of Lords Select Committee on Assisted Dying: A change in the law to allow physician-assisted dying would have profound implications for the role and responsibilities and their relationships with patients.
1 Although sometimes understood more restrictively, here ‘assisted dying’ will encompass assisting in suicide and/or performing voluntary euthanasia. 2 E.g. L Gormally ‘Euthanasia and Assisted Suicide: 7 Reasons Why They Should Not Be Legalized’ in Dickenson et al (eds), Death, Dying and Bereavement, (2nd Edition, Sage: London, 2000) 286. Acting with the primary intention to hasten a patient’s death would be difficult to reconcile with the medical ethical principles of beneficence and non-maleficence.3
But the collective professional stance does not necessarily reflect every individual professional’s conscientious views.4 Of course, if the law were to change to permit the practice, we could then anticipate conscientious objections from some professionals. In this article, we consider individual claims of conscience, as well as what we term the ‘professional conscience’. After introducing some general legal provisions and professional guidance, which together impart a limited right to conscientiously object, we reflect on the nature and sources of conscience. Conscience is important, we argue, and its dictates merit respect; however, we also acknowledge that patients too deserve respect, and that professionals are ultimately there to serve their patients. In recognition of these different needs, we defend a compromise model, in which professionals and patients alike should be accorded due respect. Equipped with these general reflections, we move specifically to consider assisted dying, and the responses this attracts, both in principle and in practice, from the medical profession and also from individual professionals. Contrary to some, we suggest that the goals of medicine need not require a position of collective opposition. We tentatively propose that a collective neutral stance could better reflect the plurality of values inherent in medicine. Whether or not this proposal is adopted, we nevertheless acknowledge that resistance will persist. If the law were to embrace assisted dying in some form, the profession and the law will need to take a clear position on the (in)validity of any individual professional’s objection. Here, we return to our compromise model, and we close by suggesting that professionals should indeed be free to exercise a limited right to object, and we reflect on one such model, which could ensure that not only patients, but also professionals, are protected.
II. CONSCIENCE AND CONSCIENTIOUS OBJECTION
As Cantor and Baum observe, conscientious objection may be met with one of three regulatory or policy responses: ‘an absolute right to object, no right to object, or a limited right to object’.5 At present, the profession and the law essentially favour the third response. The GMC therefore allows a physician to object to providing particular treatments, provided it is the treatment, and not any potentially discriminatory views regarding the patient or the patient’s lifestyle, that is claimed to be potentially damaging to the doctor’s moral integrity. 6
3 Assisted Dying for the Terminally Ill Committee, Assisted Dying for the Terminally Ill Bill – First Report (2005). 42. See also LR Kass, N Lund, ‘Physician-Assisted Suicide, Medical Ethics and the Future of the Medical Profession’ (1996) 35 Duquesne Law Review 395, 402. 4 E.g. C Dyer, ‘Twelve senior doctors back physician assisted suicide bill’, BMJ 2013; 346: F3279 (published 20 May 2013). 5 J Cantor and K Baum, ‘The limits of conscientious objection: May pharmacists refuse to fill prescriptions for emergency contraception?’ (2004) 351(19) New England Journal of Medicine 2008-2012, 2008. 6 General Medical Council (2013) Good medical practice (London, GMC), para. 8. The doctor must, however, ensure that care is passed on. Sensitivity is also required, in recognition of the patient’s dignity and possible vulnerability.7 The law also recognises a right to conscientiously object.8 Although the courts have recognised a right to object to participation in the withdrawal of life-sustaining treatment, 9 the most substantive rights are contained in those statutes which govern abortion and fertility treatment.10 The scope of such objection is qualified, and in relation to abortion, for example, the recent Supreme Court decision in Doogan confirms that objection to peripheral and indirect services, such as delegating duties as part of one’s job as a line manager or arranging for treatment provision relating to abortion, is not defensible.11 The Abortion Act’s conscience clause is echoed in Lord Falconer’s Assisted Dying Bill 2013,12 which would allow physician-assisted suicide for terminally ill patients who are expected to die within six months. Section 5 of the Bill provides that: A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by the Act to which that person has a conscientious objection. If the Bill is passed, the GMC and BMA might seek to provide guidance regarding the (otherwise vague) right to object to ‘anything authorised by the Act’, just as they have done in relation to the withdrawal or refusal of life-sustaining treatment.13 All of these provisions express a limited right to object. To determine whether this is an appropriate approach, including to assistance in dying, we will first reflect on the nature and sources of conscience and then consider the scope that should be afforded to conscientious
7 Ibid, paras 12-16. Any contractual tensions arising from an exercise of conscience are then judged to be ‘matter between doctors and their employing or contracting bodies’: ibid, para. 9. 8 Note also that article 9 of the Human Rights Act 1998 provides a (qualified) right to freedom of thought, conscience and religion. Whilst not, as yet, applied to the delivery of health care, its relevance here might soon be tested: as McHale notes, society is increasingly diverse and pluralistic, so the challenges of accommodating different faiths in the delivery of health care appear likely to grow: J McHale, ‘Faith, Belief, Fundamental Rights and Delivering Health Care in a Modern NHS: An Unrealistic Aspiration?’ (2013) 21 Health Care Analysis, 224-236. 9 E.g. Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449, Portsmouth NHS Trust v W [2005] EWHC 2293. 10 Section 4(1) Abortion Act 1967 and section 38 Human Fertilisation and Embryology Act 1990, respectively. 11 Greater Glasgow Health Board v Doogan and another (Scotland) [2014] UKSC 68. This decision overrules the earlier decision of the Scottish court (Doogan and Woods v NHS Greater Glasgow Health Board [2013] CSIH 36), and re-affirms R v Salford Health Authority, Ex p Janaway [1989] AC 537. 12 The Assisted Dying Bill, HL Bill 24 (2013) 13 British Medical Association, Expressions of Doctor’s Beliefs, available at http://bma.org.uk/practical-support-at-work/ethics/expressions-of-doctors-beliefs objection, particularly when an individual professional seeks to depart from the apparent dictates of her profession.
A. Inner Voices, Outer Voices: The Nature and Sources of Conscience(s)
‘Conscience’ remains something of a ‘black box’,14 but essentially expresses an inner voice, which originates in a commitment to morality,15 and combines ‘an individual’s faculty for making moral judgments together with a commitment to acting on them’. 16 As a faculty (which some consider analogous with vision),17 conscience may have an emotional dimension, but it also requires the application of reason, in order to ensure that one heeds one’s core moral commitments.18 The commitments will be internalised from diverse (secular or religious19) external sources, which include one’s family, culture, faith, philosophy, political affiliation, and – of particular relevance here – profession. Whatever the precise nature or origins of conscience, the critical problem is that consciences can collide. Sometimes the collision will involve two or more persons, but it can also arise within a single person. Consider, then, the person who is a health care professional. Her personal conscience may have led her to the profession; once a member, however, she will be required to exhibit a particular professional conscience. She will learn, through education and socialisation, to ‘conform to the moral consensus that is “part and parcel” of each institution and profession’.20 A doctor, for example, will internalise particular ideals from the Hippocratic corpus and beyond.21 She will, however, remain a person, with her own personal
14 L Kovács, ‘Implementation of clinical ethics consultation in conflict with professional conscience? Suggestions for reconciliation’ in J Schildmann, J Gordon and J Vollmann (eds), Clinical ethics consultation: Theories and methods, implementation, evaluation (Ashgate: Farnham, England, 2010) 65-77, 65. See also e.g. R Gillon, ‘Conscience, virtue, integrity and medical ethics’ (1984) 10 J Med Ethic 171-172, 171. The ambiguity of the term might invite further research (which the first author, in collaboration with Lois Bibbings, is aiming to undertake). For an expanded account of the arguments in this section, see R Huxtable ‘Conflict, Compromise and Conscience’ (forthcoming). 15 DP Sulmasy, ‘What is conscience and why is respect for it so important?’ (2008) 29 Theoretical Medicine and Bioethics 135-149, 138. 16 DW Brock, ‘Conscientious refusal by physicians and pharmacists: Who is obligated to do what, and why?’ (2008) 29 Theoretical Medicine and Bioethics 187-200, 188. 17 RE Lawrence and FA Curlin, ‘Response to Commentators on ‘Clash of definitions: Controversies about conscience in medicine’’ (2007) 7 American Journal of Bioethics W1- W2, W1. 18 Gillon, n.14, 171; Kovács, n.14, 66. 19 RE Lawrence and FA Curlin, ‘Clash of definitions: Controversies about conscience in medicine’ (2007) 7 American Journal of Bioethics 10–14. 20 ED Cook, ‘Always let your conscience be your guide’ (2007) 7(12) American Journal of Bioethics, 17-19, 18. 21 Kovács, n 14, 67. conscience, by which she must also abide.22 On occasion, an individual professional will encounter a conflict between her personal and professional moral commitments. Here, we might say (if only metaphorically) that there is a clash of consciences (plural), which nevertheless manifests in a single individual. First, then, we should recognise that there are two consciences in issue: those possessed by the profession and the person, respectively. Sulmasy argues that a profession will have a recognisable identity, beyond the mere aggregation of its individual members, and it can act intentionally, and be blamed or praised accordingly.23 According to Sulmasy, a profession will therefore have a distinctive professional conscience, which ‘is rooted in the fact that it professes a set of fundamental moral commitments and it must act in accord with them’.24 Whilst we acknowledge that there may be some awkwardness in suggesting that a profession has a conscience, the crucial point is that a profession such as medicine will espouse certain moral commitments, and it is this we mean to convey when we talk of a professional conscience. An individual professional will have imbibed these commitments and will, typically, comply with their dictates. This individual’s conscience will therefore be constituted by the professional conscience – but probably only in part. The individual professional’s personal conscience will also encompass values from various other sources. As Benjamin puts it, ‘our identity is constituted in part by a complex constellation of occasionally conflicting values and principles’.25 A conscientiously committed individual may therefore experience a crisis of conscience, in which she feels bound to honour conflicting imperatives. Conscience does, after all, issue imperatives: it imparts instructions about what ought to be done (the legislative conscience) and condemns what ought not to have been done (the judicial conscience).26 Failure to honour one’s conscience can, therefore, lead to judgment and punishment, whether from without (such as, for theists, by the relevant deity) or from within (leading to feelings of guilt, self-criticism and a negative self-conception).27 The possibility of such deleterious effects should probably incline us towards the protection of conscience. But which conscience merits protection, and in which ways?
B. Hearing Inner Voices: Protecting Professional or Personal Conscience?
22 Cook, n 20, 18; R Barfield, ‘Conscience is the means by which we engage the moral dimension of medicine’ (2007) 7 American Journal of Bioethics, 26–27, 27. 23 Sulmasy, n.15, 143. 24 Ibid. 25 M Benjamin ‘Philosophical integrity and policy development in bioethics’ (1990) 15(4) The Journal of Medicine and Philosophy 375-389, 385. 26 Sulmasy, n.15, 136. See also Kovács, n.14, 66; FA Curlin ‘Caution: Conscience is the limb on which medical ethics sits’ (2007) 7(6) American Journal of Bioethics 30-32, 31; Cook, n 20, 18. 27 E.g. Gillon, n.14, 171; MR Wicclair, ‘The moral significance of claims of conscience in health care’ (2007) 7 American Journal of Bioethics 30–31, 31; Lawrence and Curlin, n.17, 12. Some maintain that the professional conscience must take priority over the contrary calls of personal conscience, perhaps without exception. Personal conscience, they say, is an unreliable guide, and the individual professional has chosen, voluntarily, to enter the profession and thereby to abide by its norms, with patients correspondingly entitled to a standardised service.28 Professionalism should therefore lead the way. A profession, Pellegrino suggests, possesses specialist knowledge and operates within an ethical framework in the pursuit of a ‘broad societal need’.29 Professions are accordingly not only empowered, and thus largely free to set their own standards of education and practice, but also constrained by the need to serve the public interest,30 which will require the relegation of self-interest. The medical profession essentially pursues the good of health:31 it is a ‘moral enterprise’,32 which might be said to have a distinctive ‘internal morality’.33 Its members are, says Kolers, ‘expected not just to submit or consent to, but to identify with the conscientious performance of their function and with their strict adherence to norms of client protection’.34 These features of the professional endeavour seem to allow little room for personal conscience, at least insofar as such consciences conflict with the professional role.35 But many argue that room should be made for personal conscience. Some of these arguments are essentially consequentialist: accommodation will protect against professional burn-out, encourage moral reflection (rather than unthinking obedience to a potentially faulty ethic), and discourage minorities from mutinying.36 More often, however, commentators make appeals to autonomy, pluralism and, particularly, moral integrity as the bases for protecting personal conscience. First, recognition of personal conscience might be considered respectful of autonomy.37 Wicclair, however, doubts that this is sufficient: my autonomous objection
28 E.g. J Savulescu, ‘Conscientious objection in medicine’ (2006) 332 BMJ 294–297; E LaFollette and H LaFollette, ‘Private conscience, public acts’ (2007) 22 J Med Eth 249-254, 249. 29 ED Pellegrino, ‘Professionalism, profession and the virtues of the good physician’ (2002) 69 Mount Sinai Journal of Medicine 378–384, 378. 30 R. Huxtable, ‘Death on Demand: Proper Medical Treatment?’ in S Fovargue and A Mullock (eds), The Legitimacy of Medical Treatment: What Role for the Medical Exception? (Routledge: London, 2015, forthcoming). 31 See further below. 32 MR Wicclair, ‘Conscientious objection in medicine’ (2000) 14 Bioethics 205–227, 215. 33 Huxtable, n 30. 34 A Kolers, ‘Am I my profession’s keeper?’ (2014) 28(1) Bioethics 1-7, 4. 35 E.g. I de Melo-Martin, ‘Should professional associations sanction conscientious refusals?’ (2007) 7 American Journal of Bioethics 23–24, 23-24; RA Lindsay, ‘When to grant conscientious objector status’ (2007) 7 American Journal of Bioethics 25-26, 26. 36 Kovács, n.14, 69; M Magelssen, ‘When should conscientious objection be accepted?’ (2012) 38 J Med Eth 18-21,19; LaFollette and LaFollette, n.28, 249. 37 E.g. C Meyers and RD Woods, ‘Conscientious objection? Yes, but make sure it is genuine’ (2007) 7 American Journal of Bioethics 19–20, 20. may be non-moral or immoral (and thus not conscientious) and, he claims, my conscience can be honoured, but my autonomy thwarted, when I am exempted from providing the contested service, but it nevertheless goes ahead.38 A second, pluralistic, basis can add the necessary moral scrutiny (and steer a course between the problematic poles of moral relativism and morally universalist absolutism), since it acknowledges the existence of multiple moral world views. On this basis, which aligns with democratic pleas for respecting diversity, personal conscience can be afforded room.39 Moral integrity then provides a third foundation. Like conscience, integrity is an ambiguous term, but the (many40) defenders of this foundation tend to depict the integrated person as committed either to particular (reflective) desires or to particular identity-conferring values.41 The integrated person – and, as Sulmasy indicated,42 profession – will therefore have core commitments, the violation of which will spell self- betrayal and self-disrespect. Magelssen brings us full circle, when he suggests that ‘moral integrity is part of the common good’: medicine, as a moral enterprise, needs conscientious practitioners, who are committed to morality.43 Of course, the integrity foundation has its difficulties. First, an individual’s core commitments might be morally questionable. This leads some theorists to stipulate more objective criteria, against which a person of moral integrity must measure up. 44 Secondly, the core commitments may be difficult to detect, not least when an individual professional discerns contradictory imperatives, arising from their personal and professional values. Which, if either, set of values can be said to count as the core? And, moreover, which set of values should be honoured, and when? Both challenges can, however, be met by the pluralistic premise, which recognises not only that there might be core commitments (plural), but also that these need to meet a moral threshold. We will return to the threshold question below. For now, we should hopefully be able to see that considerations of integrity, pluralism and autonomy work together, in providing the grounds for protecting conscience.45 The individual moral agent will receive
38 Here, of course, Wicclair seems inclined to a subjective account of autonomy, rather than a more objective (e.g. Kantian) account, according to which an immoral choice would not count as autonomous. See e.g. J Coggon, ‘Varied and principled understandings of autonomy in English law: Justifiable inconsistency or blinkered moralism?’ (2007) 15 Health Care Analysis 235-255. 39 E.g. LaFollette and LaFollette, n.28, 249; RE Ladd, ‘Some reflections on conscience’ (2007) 7 American Journal of Bioethics 32-33, 32. 40 E.g. Wicclair, n.32; Brock, n.16; Sulmasy, n.15, 138; Magelssen, n.36. 41 E.g. D Cox, M Le Caze and M Levine, ‘Integrity’ The Stanford Encyclopedia of Philosophy (Fall 2013 Edition), EN Zalta (ed), http://plato.stanford.edu/archives/fall2013/entries/integrity/ (accessed May 8, 2014). 42 Sulmasy, n.15, 143. 43 Magelssen, n.36, 19. 44 Cox, Le Caze and Levine, n.41. 45 Cf. H Brody and SS Night, ‘The Pharmacist’s Personal and Professional Integrity’ (2007) 7 American Journal of Bioethics 16–17, 16. various values; she will autonomously cling to some of these values, because they reflect either her desires or her identity, and they thereby make her an integrated person; but she will, on occasion, find that her plurality of values will point in different directions. So what, then, should she do when she reaches such a crossroads, specifically if she feels the tug of different personal and professional duties? How, in particular, should the profession or the law respond?
C. Heeding Inner Voices: Protecting Professional and Personal Conscience
As we saw earlier, whenever personal crises of conscience arise, the law or the profession can favour either an absolute, an absent, or a limited right to object. The first two options prioritise the individual objector and the profession, respectively. As we have seen, both the person and the profession deserve respect, if they are to avoid the deleterious effects (and judgments) associated with dishonouring conscience. However, ceding dominance to either requires a universalist (and absolutist) foundation, which will be difficult (perhaps impossible) to defend. Rather than surrender to ethical relativism, a pluralist would recognise that there can be more than one valid moral viewpoint. This premise supports a limited right to object, which captures a compromise. Compromise can be appropriate, even on moral matters, when particular conditions are present.46 Uncertainty and complexity, whether moral or empirical, are probably the most significant drivers of compromise. The drive to meet on the middle ground then gathers pace if it is not possible to honour the different sets of competing values simultaneously, there is a risk that some such values will lose out entirely, a decision is nonetheless needed, and the disputants cannot simply exit the relationship. Many, maybe all, of these features appear to be present when consciences collide in health care. Although the doctor could choose to quit her chosen profession, this not only appears excessively punitive, but also would not tackle the other features of these debates. Fundamentally, these debates are rife with moral uncertainty and complexity.47 Resolution is undoubtedly needed: a stalemate will serve no one, and might mean a victory for the wrong side, as might allowing one set of values to dominate at the expense of another. There is, therefore, cause to contemplate compromise whenever crises of conscience arise. Compromise has, however, been considered incompatible with moral integrity.48 This is a serious allegation, since maintaining integrity provides a basis for honouring conscience. However, we should remember that there is more than one ‘integrity’ at stake whenever these crises arise. A compromise should, therefore, seek to attend to the demands of integrities (plural) by accommodating both the personal and the professional.
46 R Huxtable, Law, ethics and compromise at the limits of life: To treat or not to treat? (Routledge: London, 2012). 47 E.g. J Hardt, ‘The necessity of conscience and the unspoken ends of medicine’ (2007) 7 American Journal of Bioethics 18–19, 18. 48 TM Benditt, ‘Compromising interests and principles’, in J.R. Pennock and J.W. Chapman (eds) Compromise in Ethics, Law and Politics, Nomos, XXI, 26-37, (New York University Press: New York, 1979) 31. Compromise may, accordingly, be advisable and need not be morally problematic. But what is to count as a compromise and how might this best be achieved in relation to moral matters? Compromise can be a product of negotiation and compromising will therefore involve a process. If it is to achieve a ‘principled compromise’, both in form and substance, the process should meet three (related) requirements.49 First, the discussants should advance reliable positions, in a sincere and trustworthy fashion. Secondly, the views advanced should be reflective: only considered, and appropriately defensible, moral positions should make it to (and certainly beyond) the compromise negotiating table. Finally, the negotiations should be respectful: the disputants should be prepared to communicate with one another effectively, using reason and persuasion (as opposed to force) and recognising the sincerity and moral agency of their opponent, all in a spirit of reciprocity, in which concessions are traded. Moderate positions on conscientious objection, advocating a limited right to object, command substantial support,50 although few commentators make explicit links with the compromise literature (perhaps unsurprisingly, given its scarcity51).52 Brock, however, describes the ‘conventional compromise’, according to which doctors’ individual consciences can be honoured, provided that the patient is informed of the objection, referred on to a compliant colleague, and placed under no unreasonable burden.53 By re-organising such models according to the criteria for principled compromising, we can tackle some of their apparent problems and strengthen the moderates’ case. First, reliability requires the objector to be sincere in her belief,54 which should be central to her moral make-up: the belief must have become hers and thus convey her ‘deeply held’ conviction.55 Such features are common in moderate positions,56 but Kantymir and McLeod fear that even sincere (and, by extension, central) beliefs can be empirically baseless, unjustly discriminatory, and involve the infliction of a greater harm on the patient than any harm that might be inflicted on the frustrated objector.57 Further constraints are therefore needed. The second, reflectivity, criterion tackles the first two of Kantymir and McLeod’s criticisms, because it requires the beliefs to meet a standard of moral plausibility and the objector to engage in critical reflection. The conscience
49 Huxtable, n 46. 50 E.g. Wicclair, n.32; Meyers and Woods, n.37, 20; C Strong, ‘Conscientious objection the morning after’ (2007) 7 American Journal of Bioethics 32-34. 51 E.g. M Benjamin, Splitting the difference: Compromise and integrity in ethics and politics (University Press of Kansas: Lawrence, Kansas, 1990); A Margalit, On compromise and rotten compromises (Princeton University Press: Princeton, 2010). 52 But see Brody and Night, n.45, and M Wicclair, Conscientious objection in health care: An ethical analysis (Cambridge University Press: Cambridge, 2011). 53 Brock, n.16, 194. 54 Wicclair, n.27. 55 Magelssen, n.36, 19. 56 E.g. LaFollette and LaFollette, n.28; Meyers and Woods, n.37. 57 L Kantymir and C McLeod, ‘Justification for conscience exemptions in health care’ (2014) 28 Bioethics 16-23, 19-20. literature contains controversy over the determinative critical standard: set the bar too low and we protect the prejudiced; set it too high, for example by insisting on reasonable (or even ‘true’) moral beliefs,58 and we might protect too many or, if the standard is interpreted restrictively, too few.59 A moral plausibility standard seems, appropriately, to steer the middle course, by requiring moral judgments to be clear, informed, non-contradictory, impartial, and considered, and capable of combination to create coherent ethical principles.60 Such criteria can encompass a wide variety of moral world-views.61 Many religious world views, about which some commentators are understandably concerned,62 will make the grade, but so too will a myriad of secular positions; prejudiced positions, however, will not. Critical reflection will also be required. As Meyers and Woods suggest, professionals are not ‘free agents’: they owe obligations to patients, from which arise ‘a greater burden of proof for exemption to be justified’.63 So, says Magelssen, the objector must be prepared ‘to give well thought-through, detailed and plausible reasons’.64 Wicclair goes further, suggesting that the reasons – and thus beliefs – which should command respect are those that appeal to the core values of the profession: the further a practice is from the profession’s core commitments, the greater the room that should be afforded to personal conscience.65 Specifying medicine’s core values is, of course, no easy task.66 Wicclair might, nevertheless, gain support from the quest to compromise: as a professional, the objector should be mindful of her obligations not only to herself, but also to her patients. Viewed through the compromise prism, her claim may gather strength, the closer it aligns with both sets of values. The professional’s obligations to her patients are, however, more evident in the third, respectfulness, criterion, which generates obligations to communicate and to participate. In the professional public sphere, a professional will owe obligations to her colleagues and, especially, to her patients.67 Patients should, therefore, be protected from the harms associated with (for example) delays, restrictions on access, inadequate information, and a sense of the doctor’s moral disapproval.68 The more serious the impact on the patient – where, say, her vital interests are at stake – the greater is the obligation on the professional.69 As a two-way
58 E.g. R Card, ‘Conscientious objection and emergency contraception’ (2007) 7 American Journal of Bioethics 8–14, 13. 59 Kantymir and McLeod, n.57, 20. 60 E.g. T Regan, The case for animal rights (University of California Press: Berkeley, 2nd edn, 2004). 61 Cf. LaFollette and LaFollette, n.28, 249. 62 Magelssen, n.36, 20. 63 Meyers and Woods, n.37, 20. 64 Magelssen, n.36, 20. 65 Wicclair, n.32, 222-225. Tellingly, he cites assisted dying as an example of such a practice. 66 We return to this matter below. 67 LaFollette and LaFollette, n.28, 249; Magelssen, n.36, 20. 68 Magelssen, ibid. 69 E.g. LaFollette and LaFollette, n.28, 249; Sulmasy, n.15, 146-147; Brock, n.16, 191, 195; exchange, compromise also imposes corresponding obligations on the patient: in non- emergency situations, for instance, he should forego any entitlement to refuse any transfer of his care to a non-objecting professional.70 Mutual respect therefore requires careful calibration of the relative impact on each of the parties, so that an appropriate balance can be struck. Each party must, at a minimum, communicate respectfully with the other. Medical professionals must at least reveal the existence of their objection, ideally in advance. 71 Any direct communication must also be non-confrontational and non-judgmental.72 But sometimes the professional must do more than disclose: she must act. Where accommodation is not feasible,73 she must be prepared to refer the patient to a non-objecting doctor.74 And where such a colleague is not reasonably available or (as we saw above) the patient’s vital interests are at risk, then the objector must provide the contested service. Such complicity will impose conscientious costs: the professional will be doing (not merely allowing75) ‘wrong’. Complicity, of course, consists of degrees:76 the professional will be most implicated when she is undertaking – as opposed to referring the patient on to receive – the contested service. But still the obligation remains and she can, just as she freely joined, freely leave the profession. By remaining, the professional must accept that, sometimes, patients come first. She cannot easily complain that the profession’s values – and thus the ground rules – have changed.77 Values shift;78 the professional (and, indeed, the profession) can lobby against new developments, but, once adopted, she must abide by them. As such, the three criteria of principled compromising enable us to strike a balance that protects professional and patient alike. They will undoubtedly require interpretation in individual cases,79 a task which might be aided by the formation of committees, akin to those used in the military.80 Whether or not this is necessary or appropriate, we should now be equipped with an understanding of conscience, and a model for protecting individual consciences, which can be applied to current debates about legalising assisted dying.
III. ASSISTED DYING AND CRISES OF CONSCIENCE
Magelssen, n.36, 20. 70 Wicclair, n.32, 220. 71 E.g. Cook, n.20, 18; Ladd, n.39, 32; Card, n.58, 13; Wicclair, n.32, 225; Brock, n.16: 194- 5; Magelssen, n.36, 20. 72 LaFollette and LaFollette, n.28, 249; Magelssen, n.36, 20. 73 Meyers and Woods, n.37, 20. 74 Brock, n.16, 195. 75 Contrast Card, n.58, 9. 76 Strong, n.50, 33; Sulmasy, n.15, 141; Brock, n.16, 197-198. 77 See Magelssen, n.36, 21. 78 Brock, n.16, 199. 79 Brock, n.16, 194; Magelssen, n.36, 21. 80 E.g. Meyers and Woods, n.37, 20; Kantymir and McLeod, n.57, 18, 22. Contrast Wicclair, n.27. We have begun to suggest that a profession will serve a particular social goal. This can constrain a profession like medicine: it is required to serve the ‘public interest’, and therefore meet a ‘broad societal need’.81 Yet, the profession is also empowered in doing so: it may, for example, establish standards for itself. Yet, whatever standards it happens in fact to adopt, the profession appears bound in principle to serve particular goals, in accordance with its so- called ‘internal morality’. How might we best understand these elements and what, in turn, might they require of the conscientious medical profession and individual professional, with respect to assistance in dying? As we noted earlier, a permissive proposal might find some support, but objections can be anticipated. First, a professional objection might be issued, according to which assisted dying might be judged contrary to the profession’s core values (and therefore to its reflective desires and identity) and thus to the moral integrity of medicine. Secondly, a personal objection might arise, according to which an individual professional might claim that assisted dying is contrary to her core values (and therefore to her reflective desires and identity) and thus to her moral integrity. We will explore each of these objections in turn.
A. Assisted Dying and the Professional Conscience
Determining the nature and possible extent of a medical professional’s right of conscience is, as Hardt suggests,82 bound up with questions about the nature of medicine and its proper ends. If we agree that medicine is a ‘moral enterprise’,83 that seems to be directed towards the pursuit of health, proper medical treatment might encourage only the acceptance of that which heals or promotes health. However, despite various attempts to pin down the notion of health,84 it remains an ‘elusive concept’.85 Thus, although we might broadly agree that achieving health is desirable, it might not assist us in exploring the nature of the professional conscience or the appropriate professional attitude, particularly with regard to assisted dying. The courts have certainly recognised the need to maintain the integrity of medicine. The judges have sought to afford room to what has been dubbed ‘proper medical treatment’, on which basis a medical exception to the criminal law has been crafted, which enables doctors (lawfully) to do that which the remainder of us cannot: for example, surgery can be performed, without fear of criminal censure. In both Brown and Bland, the courts explored the conflicting interests which must be weighed when considering the involvement of the criminal law.86 The Law Lords identified a medical exception, according to which
81 Pellegrino, n.29. 82 Hardt, n.47. 83 Wicclair, n.32. 84 E.g. L Kass, 'Regarding the end of medicine and the pursuit of health', in Arthur Caplan, et al., eds., Concepts of Health and Disease: Interdisciplinary Perspectives, (Addison-Wesley Publishing Co., Reading, Massachusetts) 3-30. 85 K M Boyd, ‘Disease, illness, sickness, health, healing and wholeness: exploring some elusive concepts’ (2000) 26(1) Medical Humanities 9-17. 86 R v Brown [1994] 1 AC 212, (HL), Airedale NHS Trust v Bland [1993] 1 All ER 821. For a discussion of the medical exception see also; Law Commission, Criminal Law: Consent and (appropriate) medical activity is distinguished from (inappropriate) other(s’) criminal activity. This justificatory principle indicates that, provided the intervention is beneficial for the patient, is performed with the support and acceptance of the medical profession, or is otherwise judged to be in the public interest, it will be legitimately regarded as ‘proper medical treatment’ and it will not breach the criminal law. Lewis questions whether the medical exception is fit for purpose, but she concedes its value insofar as it allows ‘space and time for reflection, and the encouragement of inter-professional dialogue and scrutiny’.87 Of late, the judges have had ample space and time for reflection on assisted dying, especially in the wake of the Human Rights Act 1998. Initially, the judiciary was reluctant to grant too much to claimants: in Pretty, for example, the House of Lords denied that the claimant’s autonomy rights under article 8 were engaged.88 The European Court disagreed: it confirmed that the right was engaged, but it nevertheless left any limitation thereon to the state.89 By the time of Purdy,90 however, the House of Lords was more willing to interpret the European Convention in a manner that accorded some weight to patients’ autonomy rights under article 8. Here, the Lords confirmed that a clearer prosecution policy was needed.91 The resultant policy, and indeed the enduring formal prohibition on assistance in dying, was thereafter challenged in a conjoined appeal, Nicklinson and Others, which reached the Supreme Court.92 Here, the court declined to order the Director of Public Prosecutions to revise the guidance, although as a result of the court’s comments thereon,93 the DPP has chosen to issue a clarification by way of an amendment to the policy.94 This simply adds that in relation to professional assistance in suicide, prosecutors will consider, first, whether there is a relationship of care between the suspect (doctor, nurse or carer) and victim, and secondly, whether the suspect exerted some pressure on the victim.95 Whilst the court ultimately (again) left it to Parliament to decide whether a permissive law might now be required, two of the judges would have been prepared to declare the current prohibition incompatible with the claimants’ rights. The majority were not yet prepared to make such a declaration, but some judges appeared open to doing so in the future, if Parliament does not act.
Offences Against the Person: A Consultation Paper, Consultation Paper No 134 (HMSO, 1994). 87 P Lewis, ‘The Medical Exception’ (2012) 65(1) Current Legal Problems 355-376. 88 R (on the application of Pretty) v DPP [2002] 1 FLR 268. 89 No 2346/02 Pretty v UK (2002) 35 EHRR 1. 90 R (On the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45. 91 ‘ Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ Available at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html 92 R (On the application of Nicklinson and another) (AP) v Ministry of Justice [2014] UKSC 38. 93 Ibid, [143]. 94 The Policy, n.91, amended October 2014. 95 For a discussion see A Mullock, ‘The Supreme Court decision in Nicklinson: Human rights, criminal wrongs and the dilemma of death’ (2015) 31(1) Journal of Professional Negligence, 18-28. It remains to be seen how Parliament will respond to this challenge.96 Empirical and principled questions will no doubt remain whatever Parliament – or indeed the courts – choose to do.97 Empirically, we might query whether the profession (and also individual professionals) will in fact welcome any change in the law. As a matter of principle, meanwhile, we still need to assess whether assisted dying can be considered compatible with the medical endeavour. Empirically, we can discern the profession’s disquiet over assisted dying from the BMA’s statement thereon.98 The BMA proffers five reasons for its opposition to assisted dying, which convey three main objections: first, concern for the integrity of medicine; secondly, concern for vulnerable people and the undesirable consequences which might follow any relaxation on society’s prohibition on killing (the so-called slippery slope); and, finally, a belief that legal change is not necessary, or at least that it is not sufficiently justifiable by reference to what patients appear to need and what they appear to want. The lack of necessity is tied to the availability of palliative care: ‘for most patients, effective and high quality palliative care can effectively alleviate distressing symptoms associated with the dying process and allay patient’s fears’.99 Specialists in this field tend to be opposed to assisted dying and research notably reveals that there is a strong palliative care ethos in the UK.100 The BMA’s first objection leads us onto conceptual terrain, since it holds that permissive reform ‘would be contrary to the ethics of clinical practice, as the principal purpose of medicine is to improve patients’ quality of life, not to foreshorten it’. 101 Pellegrino, following Kass,102 would certainly agree: for him, the patient’s good is to be understood in an objective and transcendent sense, to which patients’ own autonomous accounts of the good (for them) must be subordinate. He explicitly excludes ‘euthanasia’ as a means to the good, judging this to fall outside the internal morality of medicine and thus contrary to the integrity of the profession.103 Yet, all need not be as Kass and Pellegrino suggest. Miller and Brody argue that,
96 At the time of writing, Lord Falconer’s Bill appears likely to run out of Parliamentary time. 97 These may be distinct questions: see RM Veatch, ‘The Impossibility of a Morality Internal to Medicine’ (2001) 26 Journal of Medicine and Philosophy 621. 98 The current BMA policy can be found at http://bma.org.uk/practical-support-at- work/ethics/bma-policy-assisted-dying 99 BMA policy, ibid. 100 See C Seale, ‘National survey of end-of-life decisions made by UK medical practitioners’ (2006) 20 Palliative Medicine 3; I G Finlay, R George, ‘Legal physician-assisted suicide in Oregon and the Netherlands: Evidence concerning the impact on patients in vulnerable groups – another perspective on Oregon’s data.’ (2011) 37 Journal of Medical Ethics, 171- 174. 101 See the BMA Policy, n.98. 102 LR Kass, ‘Regarding the end of medicine and the pursuit of health’ (1975) 40 Public Interest 11. 103 ED Pellegrino, ‘The Internal Morality of Clinical Medicine: A Paradigm for the Ethics of the Helping and Healing Professions’ (2001) 26 Journal of Medicine and Philosophy 559, as a last resort, physician-assisted dying does not violate professional integrity because, for example, there is an obligation to relieve suffering when other means to do so have been exhausted.104 Momeyer similarly suggests that the inherent Hippocratic ethic, which strives for healing as an ‘ideal’, is: an impossible and finally self-defeating model of medicine ... given the inescapable reality that some conditions are chronic and some ailments are not curable and that all life leads to death.105 Momeyer then argues that physicians should not abandon patients, but should instead strive to maximise dignity, control and comfort in dying. Notably, these authors – like Kass and Pellegrino – seek also to ground their claims in the integrity (and internal morality) of medicine, albeit arriving at very different conclusions.106 Unsurprisingly, these definitional disputes about the purported professional conscience are replicated in the opinions of practising doctors. Evidently, some individual doctors do support the prospect of lawful assisted dying.107 Some professional bodies have also been willing to adopt a neutral position.108 The claims advanced by those in favour are well-known and can be briefly summarised. First, there will be the usual appeals to concepts like autonomy, and thus to the individual’s entitlement to govern her death as well as her life, 109 and also to mercy or beneficence, according to which the suffering individual may be entitled to a suitably humane end.110 Sometimes such appeals are bolstered by references to the patient’s dignity (although this is a somewhat slippery concept, which has been deployed by opponents and proponents alike).111 Secondly, however, there will be negative arguments, in which proponents take issue with those claims that are advanced by opponents. Here, we can start with the BMA’s assertion that ‘the principal purpose of medicine is to improve patients’ quality of life, not to
572. 104 FG Miller and H Brody, ‘Professional integrity and physician-assisted death’ (1995) 25 Hastings Center Report 8. 105 R Momeyer, ‘Does physician assisted suicide violate the integrity of medicine?’ (1995) 20 Journal of Medicine and Philosophy 13, 19. 106 See Huxtable, n.30. 107 Dyer, n.4. 108 Namely the Royal College of Nursing, although the BMA fleetingly adopted a neutral position several years ago. See http://news.bbc.co.uk/1/hi/health/5123974.stm 109 S McLean, Assisted dying: Reflections on the need for law reform. Routledge-Cavendish, 2007. 110 E J Cassel, ‘The nature of suffering and the goals of medicine’ (1982) 306(11) The New England Journal of Medicine, 639-645; J De Haan, ‘The ethics of euthanasia: Advocates’ perspectives’ (2002) 16(2) Bioethics, 154-172. 111 N Jacobson, ‘Dignity and health: A review’ (2007) 64(2) Social Science & Medicine 292- 302; F G Miller, ‘The good death, virtue, and physician-assisted death: An examination of the hospice way of death’ (1995) 4(1) Cambridge Quarterly of Healthcare Ethics 92-97; C Foster, Human dignity in bioethics and law (Hart: Oxford, 2011). foreshorten it’. This may be so, but questions inevitably arise about how this over-arching objective should be interpreted and, particularly, whether it should (or even currently does) necessitate the rejection of interventions that shorten life. We know, for example, that some patients believe that there is no satisfactory way of improving their quality of life and so their preferred option is to stop living. Some will refuse life-sustaining treatment and, provided that they are competent to do so, the law and professional guidance alike require the health care team to step aside.112 Equally, the law and the medical profession endorse the withdrawal or withholding of life-sustaining treatment from incapacitated patients, sometimes on the basis that such treatment is ‘futile’ (whatever that means),113 but occasionally by reference to the perceived poor quality of the patient’s life.114 Of course, in both types of case, the behaviour is characterised as an omission, which is judged to be legitimate, provided that the duty to treat has expired. The Victorian poet, Clough, seems to capture the professional legal and medical stance: ‘Thou shalt not kill; but needst not strive officiously to keep alive’.115 This may not be killing, but in some such cases the doctor is undoubtedly involved in allowing the patient to die. Contrary to the BMA’s view, the medical profession is, therefore, already involved in some foreshortening of life – which should explain why, on occasion, individual professionals will object to being involved therein.116 Of course, the BMA might claim that there is a crucial difference between omissions which foreshorten life and actions which do so: on their account, actions that foreshorten life are impermissible, whilst omissions might sometimes be permissible. Yet, the line between the two is not entirely firm, as even some actions which shorten life can be permissible. Actions to relieve the symptoms of terminal illness – specifically the administration of analgesic or sedative medication – might be seen to hasten death, and such activity also finds legal and professional support.117 Although some doctors report that death is occasionally hastened by such means,118 specialists in palliative care argue that appropriate symptom relief almost never hastens death.119 The ‘almost’ seems to be significant: perhaps, here too, a medical professional will – albeit very rarely – be involved in foreshortening life. Proponents of assisted dying also take issue with the BMA’s suggestion that ‘for most patients, effective and high quality palliative care can effectively alleviate distressing
112 E.g. Re B, n.9. 113 R Huxtable and K Forbes, ‘Glass v UK: Maternal instinct vs. medical opinion’ (2004) 16(3) CFLQ 339-354. 114 E.g. Bland, n.86. 115 See H Kuhse and P Singer, ‘Killing and Letting Die’ in (eds) J Harris Bioethics (2001) Oxford University Press, 44. 116 E.g. Re B, n.9. 117 E.g. Adams [1957] Criminal Law Review 365-377. 118 C Seale, ‘End-of-life decisions in the UK involving medical practitioners’ (2009) 23(3) Palliative Medicine 198-204. 119 E.g. N Sykes and A Thorns, ‘The use of opioids and sedatives at the end of life’ (2003) 4(5) The Lancet Oncology 312-318; K Forbes and R Huxtable, ’Clarifying the data on double effect’ (2006) 20(4) Palliative Medicine 395-396. symptoms associated with the dying process and allay patient’s fears’. First, proponents will query whether palliative care not only can but does adequately alleviate most patients’ symptoms. Even if ‘effective and high quality’ palliative care is possible, we need to consider whether it is universally available. The Royal College of Physicians’ recent audit of the provision of care for people dying in hospitals indicates that there is significant variance in the quality of end-of-life care.120 People die daily, yet many hospitals have inadequate provision for the weekend and, alarmingly, the assessment of key performance indicators has shown that a majority of the hospitals assessed (79%) lacked adequate access to specialist support for care in the last hours or days of life.121 A lack of specialist medical education and training has also been identified as a crucial weakness in current provision. Fortunately, the audit did show that the majority of patients were at least treated for the main symptoms of pain and distress. Despite this – and mindful that the data does not directly speak to the issue of assisted dying – such evidence at least points to the need for better end-of-life care provision. Of course, opponents will then claim that palliative care will not be sufficiently prioritised if assisted dying becomes lawful.122 However, there is no reason in principle why palliative care should be de-prioritised in such circumstances, and there is even some evidence (from the Netherlands) to suggest that it can in fact continue to improve and develop.123 We do, however, appreciate that the ongoing provision (and enhancement) of palliative care in a system which embraces assisted dying will require a political commitment to its flourishing. For our part, we would enter a plea for such a commitment, even in an era of acute resource constraints and even if assisted dying becomes an option for some patients, in view of the benefits that palliative care can offer. Secondly, however, we might query whether palliative care ‘can’ allay patients’ fears to the extent that they will not seek assistance in dying. Even the very best provision would not address all of the reasons why people seek to curtail life. Due regard for autonomy (and, perhaps, dignity) might demand more than the alleviation or cessation of suffering. To date, the medical profession and the judiciary appear to judge it acceptable to sacrifice the autonomy of the minority who seek assistance in dying, in order to protect others, particularly those who may be vulnerable (although some of the judgements in Nicklinson suggest some shift in judicial attitudes).124 Safeguarding the vulnerable is, of course, important. However, evidence from jurisdictions such as Oregon, where assisted dying is legal, indicates that wealthier, more educated people are more likely to ask for an assisted death, rather than groups traditionally regarded as disadvantaged or vulnerable.125 Perhaps, as Finlay and
120 National care for the dying audit for hospitals, England, May 2014. The Royal College of Physicians and Marie Curie Cancer Care. Available at https://www.rcplondon.ac.uk/sites/default/files/ncdah_national_report.pdf 121 Ibid, 22. 122 See the Assisted Dying for the Terminally Ill Committee Report, n.3. 123 See A Mullock, ‘Exploring the tension between physician-assisted dying and palliative medicine’ in D Griffiths and A Sanders (eds), Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society. Vol. 2. (Cambridge University Press, 2013) 301. 124 Nicklinson, n.92, e.g. Lord Neuberger’s judgment. For a discussion see Mullock, n.95. George have argued, wealth and education involves a different kind of vulnerability; 126 but, equally, it may be that such fears should not be inflated. There are, therefore, strong arguments on both sides of the assisted dying debate, which emanate both from the stated opinions of those representing (and practising) medicine, and from the apparent nature of the enterprise. Given the strengths (and, indeed, weaknesses) of the arguments on both sides,127 it seems unlikely that there is a single correct position which should be adopted, in principle or in fact, by the medical profession. Indeed, we doubt whether such a stance would even be sufficient to determine the question of legalisation. There is more at stake here than the perceived or actual conscience of the medical profession, since the public interest is inevitably engaged and, with it, a wide range of interests, rights, and stake-holders.128 In short, the relevant issues are not simply clinical, and they cannot be the exclusive preserve of the medical profession. Even acknowledging the variety of issues at stake, we might still query whether there is a position which can appropriately capture the distinctive professional conscience, given its apparently diverse goals and means. As we discussed above, uncertainty and complexity, whether moral or empirical, are the most significant drivers of compromise. The current, prohibitive, professional ethical stance is mired in moral and empirical uncertainty, as there are clashing ethical imperatives and speculative predictions (about societal needs, wants, and the possible consequences of legalisation). Perhaps, then, a neutral stance might be advisable in principle, since this would convey a compromise, which would better reflect the myriad of disputed issues. Whether this would be judged politically desirable in practice is open to question;129 however, the Royal College of Nursing already adopts such a position,130 so perhaps its medical counter-parts should not be averse to adopting such a stance.131
125 See, M P Battin, A van der Heide, L Ganzini, G van der Wal and B D Onwuteaka- Phillipsen, ‘Legal Physician-assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in ‘Vulnerable Groups’’ (2007) 33 Journal of Medical Ethics 591-7. 126 I G Finlay, R George, ‘Legal physician-assisted suicide in Oregon and the Netherlands: evidence concerning the impact on patients in vulnerable groups – another perspective on Oregon’s data.’ Journal of Medical Ethics, Dec 2010, doi 10.1136/jme2010.037044. 127R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge- Cavendish 2007). 128 E.g. Veatch, n.95; Huxtable, n.30. 129 On the politics of end-of-life law, see J Coggon, ‘Assisted dying and the context of debate: ‘Medical Law’ versus ‘End-of-Life Law’’ (2010) 18(4) Medical Law Review 541-563. 130 RCN, ‘Royal College moves to neutral position on assisted dying’, 27 July 2009, see http://www.rcn.org.uk/newsevents/press_releases/uk/royal_college_of_nursing_moves_to_ne utral_position_on_assisted_suicide 131 These observations might even apply to palliative medicine. It seems difficult in principle to deny that palliative medicine can encompass assistance in dying, given its apparent concern with the quality of patients’ lives and, of course, deaths. In practice, of course, there is particular resistance amongst such specialists, although even here alternative Yet, regardless of which position the medical profession does or should adopt, there will doubtless be individual professionals who will not endorse the party line. Indeed, if assisted dying were to be legalised, we would anticipate a great many personal objections from individual professionals. In the final section, we therefore turn to consider how personal conscience might be accommodated within a legal obligation to provide physician-assisted dying.
B. Assisted Dying and Personal Conscience
If the law changed to allow assisted dying, patients would almost certainly acquire some sort of right to an assisted death, which would give rise to a corresponding (collective) obligation, owed by the profession.132 Thus, the question of how far (if at all) individual professionals might be obliged to be involved in assisted dying would become a pressing – and very thorny – issue. As we suggested earlier, the law might choose to furnish individual professionals with no right to object, an absolute right or a limited right. An absolute right to object might appease opponents within (and perhaps without) the profession, whilst an absent right would only appease hard-line proponents. In keeping with our earlier argument, we believe that a limited right will be most defensible. We have just seen that some of the conditions of compromise are present in debates about assisted dying and we earlier argued that, in the presence of such conditions, a limited right to object best strikes the balance between protecting the professional and protecting the patient. As it does with termination of pregnancy, it seems likely that the law would also adopt such a position in practice. What sort of template might best capture the compromise? Lord Falconer’s aforementioned Assisted Dying Bill contains a rather vague conscientious objection clause, which provides a right to object to ‘anything authorised by the Act’. The essential ‘thing’ authorised by the Bill is physician-assisted suicide (PAS), which would be available to those aged eighteen or more, who have been resident in the UK for at least one year and who are terminally ill. A person is ‘terminally ill’ if she has ‘an inevitably progressive condition which cannot be reversed by treatment’ and is consequently ‘reasonably expected to die within six months’.133 This person must have a clear and settled intention to end her life and she must make a declaration to that effect in accordance with the proposed formalities. The attending doctor (who has agreed to provide PAS) and another ‘independent doctor’ must approve the request. The declaration which enables PAS must be signed by the patient, both doctors and an independent witness. Each doctor must attest that the patient is terminally ill, competent to make the decision and acting with a clear, settled, voluntary and informed intention. The informed intention relates to the requirement that the patient has ‘been fully informed of the palliative, hospice and other care that is available’.134 views can be found: AV Campbell and R Huxtable, ‘The Position Statement and its commentators: Consensus, compromise or confusion?’ (2003) 17 Palliative Medicine 180. 132 C Wellman, ‘A moral right to physician-assisted suicide’ (2001) American Philosophical Quarterly 271-286. 133 Sections 2(1)(a) and 2(1)(b) of the Assisted Dying Bill. 134 Section 3(4) of the Bill. There is no requirement to assess the mental health of the person seeking to die, although she must be competent according to the terms of the Mental Capacity Act 2005. Once the declaration has been signed by all four participants, a cooling-off period of fourteen days must follow before the act of assistance occurs.135 Subsequently, the attending doctor may prescribe fatal medicines for the person, which may be delivered to the person by the attending doctor or another practitioner, including a nurse, with the authorisation of the attending doctor. Finally, the assisting health professional may prepare the medicine for self- administration by the person, or prepare a medical device that will enable the person to self- administer.136 The medicine must not be administered by the health professional, and he or she must remain with the person until they have died (unless, that is, the person chooses not to end her life on that day). ‘Remaining with the person’ means the professional must be proximate but need not be in the same room. We see, therefore, that such a legal change would involve professionals in a number of different ways. How might – and should – individual professionals respond to this sort of regime? First, we should acknowledge that doctors would not be the only participants. Others, such as nurses and pharmacists, will also be called upon to assist, and it seems likely that the final assistance in delivering and helping to prepare the drugs for ingestion will often be carried out by a nurse. Despite the Royal College of Nursing’s position of neutrality, some nurses might well object. In line with the limited right to object we earlier defended, we would expect such nurses to have the right to stand aside, provided that care is passed on appropriately. The same should hold for those doctors who would also object. As to the likely levels of objection from doctors, we can look to the evidence of professionals’ opinions, which emerged from a study by Seale in 2009.137 Asked about terminally ill patients requesting PAS, 63.2% of palliative doctors were definitely opposed, compared to 35.1% of GPs and 34.7% of other doctors. The study indicates that, while specialists in palliative care and in the care of older patients will generally resist any legal change, other doctors will be less averse. This study might be a useful predictor of the likely levels of objection and of those who are likely to do so. Of course, if the patient does encounter a resistant physician (or, indeed, other professional), she, in turn, should be prepared to look elsewhere. We have suggested that the professional should make their objections known, ideally in advance, in a suitably non-judgmental and non-confrontational fashion. Given the nature of the intervention requested (which is by definition concerned with the ending, not the saving, of life), it is hard to envisage an ‘emergency’ in which an unwilling professional should be forced to act.138 The resultant burden on the patient who is forced to ‘shop around’ would appear to be defensible and would, we suspect, be unlikely to be great.139
135 Note that the cooling-off period is reduced to six days if the person is expected to die within one month. 136 Section 4(4) of the Bill. 137 C Seale, ‘Legalisation of euthanasia or physician-assisted suicide: survey of doctors’ attitudes’ (2009) 23 Palliative Medicine 205. 138 Cf. Wicclair, n.32, 226-227. 139 Indeed, restricting PAS to those to die within six months might suggest that doctors As such, it seems likely, if the law changes, that patients will be able to obtain the assistance they seek, since willing professionals are likely to be available. Perhaps, akin to those who might otherwise be asked to terminate a pregnancy or provide certain fertility treatments, some future professionals will elect not to join the specialties in which they might be called on to assist in death. There may be (some) cause for optimism, however.140 Although GPs could be most likely to be involved, we might doubt whether any particular specialism will be especially tasked with PAS. Furthermore, in jurisdictions where PAS (and/or euthanasia) is lawfully available, it is evident that doctors generally behave cautiously. Even here, doctors can appear reluctant to comply with requests to help patients to die. Often the patient dies naturally, before the request can be realised: indeed, research in the Netherlands showed that just 44% of explicit requests are carried out.141 Such caution seems advisable. While we can only speculate about any connection between the doctor’s reluctance and her moral conscience, it seems that even those doctors who do not conscientiously object to providing assistance in dying will attempt to avoid it. Other research from the Netherlands indicates that doctors who are willing to assist find such assistance psychologically difficult. 142Perhaps, then, a prevailing attitude of reluctance will be present within any system in which assisted dying is lawful. Of course, for those who are not merely reluctant, but instead outright opposed, the existence of a conscientious objection clause should provide some protection. Yet, despite our earlier optimism, it would be foolish not to acknowledge the sensitivity of the terrain that will need to be navigated. Certainly, patients and doctors within the palliative care sector may face some difficult negotiations.143 Parallels may also be drawn between professionals’ objections to involvement in abortion and certain methods of contraception, in which relationships not only with the patient, but also with colleagues and employers can become difficult.144 As Collins has suggested, one person’s objection may be viewed by another as a ‘calculated obstruction’.145 The extent to which a physician should be permitted a limited right to object, according to the nature of the treatment and the level of assistance entailed, will surely require further exploration. There is already some debate about the provision of not only abortion, but also emergency contraception, and the roles that various health care would not be overwhelmed by requests. 140 Of course, this would need to be kept under review, as would any evidence of sliding down slippery slopes. 141 See M C Jansen-van der Weide, B D Onwuteaka-Philipsen, G van der Wal, ‘Granted, Undecided, Withdrawn and Refused Requests for Euthanasia and Physician-Assisted Suicide’ (2005) 165 Arch Intern Med 22. 142 G K Kimsma, ‘Death by request in the Netherlands: Facts, the legal context and effects on physicians, patients and families’ (2010) 13(4) Medicine, Health Care and Philosophy 355-361. 143 Although, if patients seek PAS before the need for palliative care arises, perhaps this particular tension can be minimised. 144 E.g. Doogan n.11 145 M K Collins, ’Conscience clauses and oral contraceptives: Conscientious objection or calculated obstruction’ (2006) 15 Annals Health L 37. professionals should play in providing such treatments.146 For example, some might accept that a doctor should be permitted to object to performing an abortion but might feel less accepting of a pharmacist who refuses to provide emergency contraception. In the event that assisted dying is legalised, physicians, pharmacists and nurses will need to make their voices heard regarding what role, if any, they are willing to play in helping patients to die. Ultimately, even those who are not ethically opposed to becoming personally involved might have concerns about the adequacy of safeguards and the regulatory system proposed. Any proposal for legal change will therefore need to attend carefully to arguments on both sides, and thus ensure that qualifying criteria are carefully formulated, within a well-regulated system. A model of PAS which represents a ‘last resort’, which may only be used when other means of treating a dying patient have failed, may be most acceptable to many within the profession. Similarly, ensuring a limited right to object should also protect the moral identity and integrity of individual professionals, thus easing some of the concerns they might have about assisted dying.
IV. CONCLUSION
We have explored conflicting perspectives relating to how the inner morality or collective conscience of medicine should delineate what falls within a doctor’s duty. Faced with conflicting interests and clashing ethical imperatives, how should the profession respond to calls to accept assisted dying as proper medical treatment? There seems no strong reason why, in principle, the profession cannot endorse assistance in dying. Perhaps – but only perhaps – the profession might therefore be advised to adopt a more neutral stance in practice. Such a compromise could create a space for facilitating a more nuanced and productive debate about what patients might reasonably need (and want) and what doctors might reasonably be willing to provide. Within this space, the profession should be well- placed to engage with the debate about the parameters of possible legal assisted dying, in order to ensure that any legal change addresses professional concerns. Continued refusal even to consider assisted dying might prevent professional engagement with a law that could, nonetheless, be foisted upon the profession. Looking to a possible future in which some form of assisted dying is lawful, we should, at a minimum, ensure that individual professionals have a right not to participate. We have defended a limited right to object, premised on the notion of principled compromise. Lord Falconer’s Bill seems capable of capturing the main elements of this sort of conscience clause, but we would urge further discussion of the parameters of this – or, indeed, any – proposal to legalise some form of assisted dying. The core conscientious complexity here involves finding a way, if the law is to change, of attending simultaneously to the concerns of the profession and its members and to the needs and wishes of patients who would seek such assistance.
146 E.g. Card, n.58.