Place of conscientious objection in healthcare in Kenya: The continuing debate

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By Dennis Ndiritu

The Miller-Keane Encyclopaedia of Medicine, Nursing and Allied Health 7th Edition 2003, describes conscientious objection as an appeal to conscience in refusing to do or seeking exemption from acts that threaten a person’s sense of integrity. Luisa Cabal, Monica Arango et al, in Striking a balance: Conscientious Objection and the Reproductive Health Care from the Columbian perspective, (2015) conceive it as the refusal to participate in an activity that an individual considers incompatible with his/her religious, moral, philosophical, or ethical beliefs.

The right to conscientious objection is founded on human rights, to act according to individuals’ religious and other conscience.  In medicine, it is thus the notice that a healthcare provider can abstain from offering certain types of medical care with which he or she does not personally agree, as was the case in Doogan & Another vs. NHS Greater Glasgow & Clyde Health Board (2013), where two Catholic midwives submitted to a Scottish court that their right to conscientious objection under the 1967 Abortion Act entitled them to refuse to delegate, supervise and/or support staff in the participation in and provision of care to patients undergoing termination of pregnancy… throughout the termination process.

Striking doctors

This raises the question of whether medical providers (physicians) have a duty to uphold the wishes of their patients as long as those wishes are reasonable. On the one hand, there is the argument that physicians are moral beings and their morality should not be infringed upon by dictates from the legislature, medical community or patient interests. This props up the non-ending debate on law and morality and whether morality should have any impact on the workings of the law, traceable to the Wolfenden Committee Report, which opined that the law ought not to play any role in the enforcement of a concept of morality, having the only functions of preserving public order and decency, protecting the citizen from what is offensive or injurious, and providing sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable.

This was later repudiated in Shaw vs. DPP, where The House of Lords declared it had a “residual power where no statute has as yet intervened to supersede the common law to superintend those offences, which are prejudicial to the public welfare.” This debate thus invokes the questioning of the place of conscientious objection in the practice of medicine, namely whether it is acceptable for a healthcare provider to deny appropriate and legal medical care to a patient when asked to do so. Those in favour opine that the morality of the physician is an integral part in the doctor-patient relationship and should not be ignored. On the other hand, critics of this are of the view that the supremacy of patient autonomy and the professional duty of a physician are reason enough to oppose the application of conscientious objection.

International Human Rights Law recognises that conscientious objection claims in health care settings are derived from the right to freedom of thought, conscience, and religion, established under Art 18 of the International Covenant on Civil and Political Rights (ICCPR). The United Nations Human Rights Committee (HRC), for instance, has found that Article 18 entitles individuals to conscientious objection protections. However, while the ICCPR notes that States cannot limit the right to freedom of thought, conscience, and religion, various treaty-monitoring bodies have determined that the freedom to manifest religion or beliefs can be subjected to restrictions. For example, the H.R.C., as well as the U.N. Committee on Economic, Social and Cultural Rights (CESCR), have conveyed that, to protect individuals’ rights to the highest attainable standard of health, States can restrict conscientious objection if the restriction – follows the law, is compatible with other human rights, has legitimate aims and;  is strictly necessary to promote general welfare.

The American Congress of Obstetricians and Gynaecologists, Committee on Ethics emphasise that although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient’s health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities and conscientious refusals that conflict with patient well-being – they should be accommodated only if the primary duty to the patient can be fulfilled in the during which all health care providers must provide accurate and unbiased information so that patients can make informed decisions. Where conscience implores physicians to deviate from standard practices, they must provide potential patients with accurate and prior notice of their personal moral commitments.

Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patient’s request. It is with regard to the profound effect of conscientious objection that the American College of Obstetricians and Gynaecologists (ACOG) Committee on Ethics considers the issues raised by conscientious refusals in reproductive medicine and outlines a framework for defining the ethically appropriate limits of conscientious refusal in reproductive health contexts. According to them, conscientious objection can only be limited depending on the potential for imposition on patients who do not share the objector’s beliefs, the effect on the patients health, the scientific integrity of the facts supporting the objector’s claim and the potential for discrimination on the patient.

Article 32 of the Constitution, 2010, espouses everyone’s right to freedom of conscience and religion, thought, belief and opinion. The provision further goes on to provide everyone with the right to manifest any religion or belief through practice, teaching or observance. However, of fundamental importance is sub article three, which prohibits denial of enjoyment of any right because of a person’s belief or religion. This article is to the effect that one cannot use his right to conscience and religion to limit another person’s enjoyment of his rights.

A purposive interpretation of this provision, together with Article 18 of the ICCPR, alludes to the clear fact that exercise of the right to manifest one’s religion or belief cannot supersede women’s rights to health. The H.R.C. further goes on to underlie this by recognising Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion. Julian Savulescu underscores the primary goal of healthcare as the protection of the health of its recipients. He notes that doctors should not only be able to offer legal and beneficial, but also controversial care. He argues that the personal beliefs and morality of the physician should not affect medical decision-making. The only thing that that matters is what is “best” for the patient as both the patient and the law see fit, and this, it has been argued, would force physicians to perform procedures or services that they may view as immoral. However, to appreciate Savulescu’s position, one has to accept several fundamental premises, namely: patients can make reasonable decisions when presented with all the data; the duty of the physician is to honour the patient’s wishes, if those wishes are within reason and; patient’s autonomy and the right to guide one’s own medical care are universal truths which conscientious objections inherently take away from the patient and place in the hands of the physician.

Further, women having intellectual disability and of a mental age of a minor enjoy protection under the Health Bill, 2016, which provides the right to reproductive healthcare, including the right of men and women of reproductive age to be informed about, and to have access to reproductive health services, including to effective, affordable and acceptable family planning services except elective abortions and how consent is to be obtained.

In addition, General Recommendation No. 24 of the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) establishes that it is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.

The recommendation also notes that States parties must refrain from obstructing action taken by women in pursuit of their health goals and indicates that States must take action to prevent and impose sanctions for violations of rights by private persons and organizations. In addition, States have an obligation to safeguard women’s access to reproductive health care based primarily on the non-discrimination principle. State parties to treaties must not only provide access to reproductive health care services, but also monitor private institutions’ compliance with human rights protections, as well as enforce regulations when private institutions breach their responsibilities.

The CEDAW Committee, as well as other Treaty Monitoring Bodies, could also apply standards for private institutions under the right to health to clarify that while States have the obligation to guarantee the right to freedom of religion as a human right, they must also protect women’s rights to equality and health. This places an obligation on the state to regulate invocation of conscientious obligation, illustrated in R .R v Poland  (2011), where the European Court of Human Rights established that States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.

Thus in light of the preceding lengthy discussion, it is evident that exercise of conscientious objection by medical experts over their patients should not unnecessarily violate the patients’ rights, namely that of healthcare to the highest attainable standard, to be treated with dignity being a person of mental disability, to reproductive health as a woman contrary to Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and should be compatible with Article 24 provisions on  limitation of rights.

In conclusion, Cardozo J., in Schloendorff vs. Society of New York Hospital, states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body…” It is in light of this that doctors should stop imposing their conscience pegged on religious beliefs on a patient but should, at all times, uphold their oath to offer to the best of their abilities appropriate, uncompromised medical care without bias and should fully take on the matter of the physician and act for the good of the patient, respecting their values, and never putting their interests and beliefs above those of the patient except only when necessary.

Although respect for conscience is a value, it should not be overridden in the interest of other moral obligations that outweigh it, for it becomes unethical when healthcare practitioners treat patients only as means to their own spiritual ends. ^

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