Conscientious Objection

Question 1

s 4(1) Abortion Act 1967

Answer 1

Provides that no person is under a duty to participate in the termination of a pregnancy if they have a conscientious objection.

Question 2

s 38 Human Fertilisation and Embryology Act 1990

Answer 2

Provides that no person who has a conscientious objection to participation in any of the activities under the Act is under a duty to do so.

Question 3

Greater Glasgow Health Board v Doogan

Answer 3

Issue = scope of conscientious objection right under s 4 AA 1967.

SC held that participation had a narrow construction under s 4 and only involved taking part in a “hands on” capacity. Therefore, managerial ancillary and administrative tasks do not fall within the scope of s 4. This meant that D’s objection to participating in the management of others and carrying out administrative tasks related to abortion fell outside of the ambit of s 4.

In terms of treatment, this includes from the very beginning of pregnancy until the end - whole course of treatment.

Question 4

GMC Guidelines on Conscientious Objection

Answer 4

s 8 provides that individuals may opt out of providing a particular procedure because of their personal beliefs and values, so long as this does not amount to direct or indirect discrimination against the patient or group of patients.

Question 5

s 1(52) GMC Guidance

Answer 5

Clinicians must explain to patients why they have a conscientious objection and tell them about their right to see another doctor - duty to refer them to another doctor.

Serious or persistent failure to comply with this guidance on conscientious objections may lead to a doctor having their registration revoked. Shows that medical profession does have strong internal self-regulation mechanisms.

Question 6

Jonathan Montgomery

Answer 6

‘Conscientious Objection: Personal and Professional Ethics in the Public Square’ - argues that the statutory conscience clauses are problematic.

• Inflexible blanket exceptions which are insufficiently responsive to circumstances related to conscientious exercise of professional responsibilities.
• Permit personal moral agency as the basis for opting out, rather than following professional identity.
• Problem = if it is an exercise of moral agency as JM characterises it, then this must be subject to balancing against public authority duties, moral agency of pregnant woman seeking lawful abortion etc. This does not happen where the statutory conscience clauses apply since they are broad blanket opt-out rights.
• Ladele v Islington BC - registrar required to perform same sex civil partnerships as part of LA’s dignity policy. Law upheld this. Why should this balancing act not also apply to doctors exercising moral agency? Dealing with these conscience issues in the employment context gives a fairer, more flexible framework = better.

Question 7

Analysis of conscientious objection

Answer 7

• Shows problems with Parlt decision-making -> drafted incredibly broad clauses which unfairly privilege the moral agency of doctors.
• Courts have generally been effective in this area -> reined in the scope of these clauses to some extent (e.g. Doogan). Doogan = careful judgment which exercises proper functions of the courts such as accountability and the rule of law.