What is conscientious objection in medicine? It’s where the law permits doctors, nurses, and pharmacists to refuse to perform lawful services that are part of their specialty without penalty. It is a privilege very few working people enjoy.
Conscientious objection calls to mind courageous soldiers of WWI who refused to kill the enemy on moral grounds. For that, army authorities persecuted them without mercy. They paid a high price for their courage.
Medical conscientious objection is different. It is not a courageous moral stance. Objecting health care providers ARE the persons in authority. It is patients who are forced to make sacrifices for their doctor’s conscience, using their own time, money, and effort. The doctors themselves face no personal disadvantage.
Before 2010 the Medical Council of New Zealand required objectors refer their patients to other doctors who would give them the care they needed. But in 2010 a group of anti-choice doctors in New Zealand tested the limits of conscientious objection by seeking judicial review of the Medical Council’s requirements around abortion referral. The court found that objecting doctors should not be required to refer abortion patients to a doctor who could help them – they only had to inform them that abortion was available elsewhere. The Medical Council considered appealing this decision, then dropped their appeal.
The current situation is unfair to patients. The patients are not doing anything wrong, and yet the law places the burden of their doctors’ conscience on them to navigate the system, and endure humiliation, expense, and delays in receiving care, all without redress.
Why shouldn’t the cost be borne by the person with the objecting conscience? The providers, not the patients, are deviating from the norm in refusing services that would normally be considered part of their job. Only the existence of s 46 of the Contraception, Sterilisation, and Abortion Act 1977 shields them from the consequences of their refusal.
The way the current system apportions the cost of conscience implies patients are doing something wrong by seeking contraception or abortion. Surely our country has moved beyond judging people for having sex.
Some have suggested providers should be compelled to provide the services associated with their specialties, or find another job. But would you REALLY want to get a vasectomy or an abortion from someone who does not want to perform one?
Moreover, compulsion is a blunt instrument that does not take note of nuance among objectors. Some will perform abortions up to the 12th week, some to the 24th week, and others have other idiosyncrasies. Are they all equally culpable?
It would be fairer to require providers to alleviate the harm they have caused. Providers should be required to compensate the patients to whom they deny service. This should take the form of automatic monetary compensation for each instance of refusal, directly to the person who was refused service.
Compensation should take into account efforts the providers make to alleviate the harm they cause. Compensation should be reduced for doctors who refer their patients to a doctor who will provide service. If the provider makes a genuine effort to notify patients and potential patients what services they will or will not provide, compensation should be reduced accordingly.
The purpose of monetary compensation is two-fold. First, it compensates patients for trouble, inconvenience, hurt feelings, and injury to their dignity. Second, it penalises providers who selected specialties they cannot completely honour.
It restores the expectation of reasonable behaviour on the part of health care providers, and defines that behaviour as providing services to patients, rather than passing judgment on them.
 Hallagan v Medical Council of NZ HC Wellington CIV-2010-485-222, 2 December 2010.