Document on conscientious objection in healt care
| Autor | M. Casado - M. Corcoy |
| Páginas | 39-57 |
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The Opinion Group of the Bioethics and Law Observatory, based in the Barcelona Science Park, was created in 1996 in response to several needs: to analyse, from a scientific and multidisciplinary point of view, the ethical, social and legal implications of biotechnology and biomedical advances, and to contribute to build up a responsible dialogue among researchers, lay people and industry.
To this end, the Bioethics and Law Observatory is oriented to identify problems conveying scientific and technical knowledge, to seek a basis for argument even coming from a wide variety of convictions and opinion, and also providing suggestions regarding specific steps to be taken in a truly informed public debate. In sum, this involves allowing people’s opinions to be heard before administrative and political agencies which regulate and control research activities and applications of new technologies. In this exchange it is necessary to involve the media, not only to improve the quality of information but also due to their power to create public opinion.
With this in mind the Opinion Group at the Bioethics and Law Observatory has prepared several Documents on current affairs in which there is no unanimous opinion in society or among the different scientific communities involved, which meant identifying problems, comparing arguments and proposing recommendations to reach a consensus.
On this occasion the Group presents a Document of Opinion with the intention of intervening in the debate concerning conscientious objection in the health sector to detail the ethic and legal impact together with how this infiuences society as carefully as possible.
This Document starts from acknowledging the individual’s principle of autonomy and freedom of conscience, ideology and religion. And precisely because of this it highlights the risk of hoe exercising one’s conscientious objections in the field of healthcare may clash with a patient’s rights. Therefore, the Authorities and institutions involved must take the necessary steps to facilitate compatibility between exercising one’s rights and respecting the decisions of others involved.
In the field of healthcare, staff may conscientiously object to carrying out certain treatments and services which the law recognises as a patient’s right. However, to facilitate objection practices it is necessary to find a specific law to regulate them
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so that patients may not be harmed and to avoid any neglect and abuse which may occur.
On this matter, as an additional challenge to Bioethics, a profound multidisciplinary dialogue is required which includes and contrasts ethical-philosophical, anthropological, legal, social, medical and economic data and arguments to set up problematic contexts and also to frame a methodology to make possible a full informed debate.
The Group has been coordinated by Dr Mirentxu Corcoy and Dr María Casado to prepare this Document and has received contributions from multidisciplinary areas by specialists who are listed at the end of this document.
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This Document starts with the premise that the power to conscientiously object may exist since it is innate in democratic societies that members may disagree with legally established general rules; for example when, in the interest of respecting this freedom of conscience, they are exempted from a duty to act based on the existence of legal rules which must be complied with -such as establishing the right to receive certain medical treatments-. This is how the problems which lead to decisions to reject, disqualify or hinder certain health practices are focused when those in charge of performing them refuse -for reasons of conscience- to provide legally established rights in health systems financed totally or partly by public funding.
As a previous framework for this analysis, one must bear in mind that one’s moral beliefs are affected by one’s most private expressions of personal conscience and so it is usually said that this is an independent or self-imposed decision while rights are heteronomous. Moral belief has no external means of coercion: its authority is based on convictions which resort to the conscience while rights can be imposed both by coercion and sometimes even physically.
In Democratic States governed by rule of law it is essential that there be no legally sanctioned means of control other than Law and it is unacceptable that certain persons can impose their own moral precepts upon others. If moral rules were provided with coercive sanctions similar to those in Law, the spheres of freedom not affected by Law would be invalidated since they are invaded by another instrument of control, and the institutions administering it (churches or other organizations) could impose their external coercion beyond the limits of legal control and guarantees of individual freedom would therefore be invalidated. Personal opinions cannot become an absolute postulate applied to others.
The legal system prescribes rules which are valid for all, irrespective of the moral opinions of each citizen. Law is limited to requiring external obedience of the rules since these are necessary for coexistence and this imposes a minimum level of ethics without which social life would be impossible. In a plural society however, the old dispute between moral and legal duty may easily arise, which is the core element of conscientious objection. For practical reasons it is worth noting that confiicts do not arise in issues that are generally accepted but in debated matters, difficult cases or unsolved problems for which there are no
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clear solutions. Therefore, the issue of a link between ethics and rights is a political legal matter concerning methodology which affects Lawmakers, the Authorities and judges, while the decision not to obey the Law due to moral disagreement is an individual ethical option not a legal one.
Conscientious objection is the refusal by a person, based on reasons of moral conviction, to perform certain actions or to take part in certain activities which the law or competent authority obliges him to do. The objector does not intend to change the rule but only that he be exempted from complying with it due to reasons of conscience. The root of objection lies in the objector agreeing to perform other services, or confront inconveniences as a consequence of his requesting exemption.
It should be clearly highlighted that in this case, confiict arises between two positive spheres: the right to the health worker’s freedom of conscience, which also implies the possibility of objecting to his involvement in performing certain health treatments, and the patient’s right to receive a legally established service. This tension requires taking steps to enable both positions to be respected by providing the...
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