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Consequences for Patients of Health Care Professionals' Conscientious Actions: the Ban on Abortions in South Australia

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Consequences for Patients of Health Care Professionals' Conscientious Actions: the Ban on Abortions in South Australia J7ournal ofmedical ethics 1994; 20: 80-86 J Med Ethics: first published as 10.1136/jme.20.2.80 on 1 June 1994. Downloaded from Consequences for patients of health care professionals' conscientious actions: the ban on abortions in South Australia Leslie Cannold Monash University, Melbourne, Australia Author's abstract were forced to travel by bus, at state government The legitimacy of the refusal ofSouth Australian nurses expense, to Sydney or Melbourne, journeys of 22 to care for second trimester abortion patients on grounds and 11 hours respectively from SA's capital, ofconscience is examined as a test casefor a theory of Adelaide. The cause of this two-year disruption of permissible limits on the autonomy ofhealth care late abortion services was the mass refusal by SA professionals. In cases of health care professional (HCP) nurses, on grounds of conscience, to participate in conscientious refusal, it is argued that a balance be abortions for social reasons beyond the twelfth struck between the HCPs' claims to autonomous action week (4). and the consequences to them ofhaving their In this paper, I will be using the SA case as a test autonomous action restricted, and the entitlement of case, against which I will be applying a theory patients to care and the consequences for them of being that seeks a balance between HCPs' autonomy- refused such care. Conscientious action that results in based rights and their corresponding obligations tocopyright. the disruption or termination ofhealth care services, patient care. I believe there will be relevant however, is always impermissible on two grounds. similarities between this case and others, whether Firstly, because it is at this point that the action '... in Australia or abroad, where HCP rights and invades a patient's autonomy, puts a patient at serious obligations collide over morally charged medical risk ... [and] treats a patient unjustly' (1) Secondly, issues. because the consequences ofsuch refusals turn them into http://jme.bmj.com/ political acts - acts ofcivil disobedience. It is arguable that in orderfor acts ofcivil disobedience to be 2. Argument summary legitimate, certain obligations are required of the I will argue in this paper that conscientious action by dissenter by the community. It is concluded that the HCPs is impermissible in cases where such action actions of the South Australian nurses, which have over results in the disruption or termination of health care the lastfew years both terminated and disrupted second services. My claim is that HCP obligations to patient trimester services, are morally impermissible. care can be derived from the set of obligations that rightfully flow out of the professional-client on September 25, 2021 by guest. Protected relationship. Although there are a significant 1. The case number of instances where HCP conscientious In the state of South Australia, between the years action should be respected, once the disruption or 1988 and 1990 it was nearly impossible for a woman termination of health care service is the result, such to obtain a second trimester abortion for social action becomes impermissible for two reasons. reasons in an SA hospital, hospitals being the only Firstly, because it is at this point that the place in the state where such services are available conscientious action illegitimately '... invades a (2). In SA, legislation provides for legal abortions to patient's autonomy, puts a patient at serious risk ... protect the woman's physical and mental health and [and] treats a patient unjustly' (1). Secondly, on eugenic grounds, within 28 weeks of conception. because it is at this point that the nurses' actions From 1988 to 1990, only one private practitioner become political in nature, and are thus properly in the entire state provided a mid-trimester service. understood as acts of civil disobedience, not acts of Thus, the vast majority of women who needed conscience. When a person exercises her autonomy- such services (approximately 10 per cent of based rights to civilly disobey, she must also accept abortions take place in the second trimester (3)), the obligations that this right entails. Thus, in the SA case, the nurses' actions were morally impermissible for two reasons. Firstly, because the risk to which Key words they subjected abortion patients outweighed the Conscientious action; conscientious objection; abortion; benefits to those patients of the nurses exercising professional ethics; nursing ethics. their autonomy-based right to act on conscience. Leslie Cannold 81 J Med Ethics: first published as 10.1136/jme.20.2.80 on 1 June 1994. Downloaded from Secondly, because the nurses failed to fulfil the (a) Important: That the service provided by the obligations that were incumbent upon them as civil HCP is important suggests that it is not a dissenters. In the final section of the paper, I will dispensable service. While not all patient-care claims address myself to what I believe is the most likely are urgent in nature, relatively few patients can wait objection to the account presented; an objection on for care for weeks on end. And even in those cases grounds of fairness. where patients do wait many months for treatment, this period is characterized for most by worry, inconvenience, discomfort and an increased health 3. Professional obligations/patient claims risk (9). However, just because the service provided When considering the morality of the conscientious by the HCP is important does not establish any action of the SA nurses, one must consider the patient claim to this service. What it does do, claims for care that the second trimester abortion however, is explain why society (which we might patients had on the nurses. My contention is that the think of as mostly comprised of past and future abortion patients do have a claim for care on the patients) has an interest in setting up a situation nurses, one that can be derived from the nurses' where patients can rightfully make claims on HCPs professional training and responsibilities. for care. Michael Bayles (5) says that professions are almost always characterized by the following three (b) Monopolistic and (c) Reciprocal: HCPs have features: exclusive possession and exercise of skills that are crucial to the health of individuals and thus so 1. A professional undergoes extensive training. important to society. Silver points out that this 2. The training involves a substantial intellectual monopoly is a valuable one, giving HCPs immense component. social and, in the case of doctors, economic power 3. A professional's service is valued by society. (10). The substantial education required to educate an HCP costs society significantly, and thus Commonly, professions are also associated with: engenders in the recipient an obligation from copyright. 4. Licensing or certification requirement. reciprocity to attend to society's health care needs. 5. A professional organization. However, here again, no obligation is established 6. Exercise of autonomy and discretion at work. between a specific HCP and any individual or class of patients. Monopoly and reciprocity do, however, While the career of nursing can clearly be mean that an HCP cannot simply refuse to treat or characterized by features 1-5, Bayles allows that '... care for a class of patients for any reason she devises, http://jme.bmj.com/ nurses are often thought to have equivocal status as however arbitrary or trivial. Obligations from professionals simply because their superiors can monopoly and reciprocity mean that, all things being overrule their judgements about specific aspects of equal, HCPs have an obligation to treat all patients. their work (6). He concludes, however, that nursing Thus, if the HCP wants to refuse treatment to any is a profession firstly because an '... element of patient or group of patients, it is her responsibility to autonomy remains ...' in nursing work, and secondly provide an adequate justification for her actions. because while autonomy is clearly a '... common and partially defining feature of a profession ...' it may (d) Contractual: Silver points to HCP ethical on September 25, 2021 by guest. Protected not be a '... necessary one' (7). Certainly, nurses codes as forms of explicit promises from physicians consider themselves to be professionals, as shown by to treat patients. But here again, none of these codes any number of books, reports or periodicals in the explicitly requires HCPs to care for all patients (1 1). nursing field which refer to the occupation of Moreover, Silver points out that 'occupational roles nursing as a profession (8). are especially good at creating obligations ...' (12). If we are now confident that nurses are By this, two things can be understood. Firstly, that professionals, we must then ask about the nature of in accepting the job, HCPs have implicitly the obligations that professionals have to their contracted to sacrifice some of their autonomy in clients. There are a number of characteristics of the order to further the autonomy of others. Secondly, role of the professional from which we may derive in accepting the job, Silver argues that HCPs the responsibilities of HCPs' to patient care. These implicitly agree to '... a job description that includes are that the role of the professional is: a relatively high degree of danger' (12). Although Silver advances this argument in response to (a) Important prudential reasons that HCPs offer for refusal to (b) Monopolistic treat, the argument also holds for moral reasons that (c) Reciprocal HCPs advance for refusing to treat. The crucial part (d) Contractual of Silver's argument is about what it is reasonable to (e) Circumstantial expect an HCP to know about the issues that will arise in the course of practising her profession before Let us look at these more closely. she actually decides to train for and accept the job. It 82 Consequencesforpatients ofhealth careprofessionals' conscientious actions: the ban on abortions in South Australia J Med Ethics: first published as 10.1136/jme.20.2.80 on 1 June 1994.
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