Dr Catherine Hallagan
BA MBChB Dip Obstetrics FRNZCGP
April 2013
I will give a doctor’s view of the issues from a personal and professional perspective since the two are closely intertwined. My approach is to discuss:
- Conscience and Conscientious Objection
- New Zealand Laws relevant to Conscientious Objection
- Key Moments in my professional journey
- Conscientious Objection & Antenatal Down Syndrome Screening Programme
- Challenges that lie ahead
1/ What is Conscience?
Conscience is an attribute that allows a person to form a sense of right and wrong, and to decide how one should behave when faced with a moral choice. It is a uniquely human faculty that is fundamental to our humanity.
Conscience is sometimes thought of as our inbuilt satellite navigator or some sort of angelic voice distinct from our own reasoning that comes as it were from outside us, even if we hear it inside our head or heart. 1
A classic description of conscience was written by John H. Newman and I quote:
“In the depths of his conscience, man detects a law which he does not impose upon himself but which holds him to obedience. Always summoning him to love well and avoid evil, the voice of conscience, when necessary, speaks to his heart: do this, shun that. For man has in his heart a law written by God; to obey it is his very dignity: according to it he will be judged. Conscience is the most secret core and sanctuary of a man. There he is alone with God, whose voice echoes in his depths.” 2
A person’s conscience is not necessarily an infallible moral compass. It can be corrupted and fail to prefer right over wrong. A person’s conscience needs to be well-formed, and well-informed, by instruction, reflection and correction.
The practice of medicine assumes that a doctor acts in good conscience. Since the time of Hippocrates in the 3rd Century BC, medicine has had core ethical values which mark it as a moral and not merely technical activity. The Hippocratic doctors took an oath which acknowledged that doctors were accountable to a higher power. Later, the Hippocratic Oath was refined in the light of Judaeo-Christian and Islamic teachings, commanding an unconditional regard for the patient. The physician was called by God to heal the sick irrespective of their illness, circumstances, or ability to pay.
Regrettably, modern medicine has many practitioners who have denounced, or have never known the historic roots of their profession. Their departure from adherence to traditional medical ethics has been to society’s peril.
What is Conscientious Objection?
Conscientious objection is an appeal to conscience to refuse to perform acts that threaten a person’s sense of moral integrity. Doctors and nurses, as well as patients, may appeal to conscience in declining to perform a particular procedure or to undergo treatment. Health practitioners have an ‘obligation to oppose’ by conscientious objection, laws that pose a threat to human life.3
Disputes can arise between a patient’s request for a lawful medical service and a doctor’s right to refuse to provide treatments that are morally objectionable to the provider. Those with a conscientious objection to granting such a request should exempt themselves from having to deal with such a situation. However, in turn, an employer should not discriminate against employees merely on moral or religious grounds.
2/ What New Zealand Laws relate to Conscientious Objection?
Reference to Conscientious Objection in New Zealand legislation occurs in three specific Acts of Parliament.
The Statutes are:
The Contraception Sterilisation and Abortion Act 1977
The New Zealand Bill of Rights Act 1990
The Health Practitioners Competence Assurance Act 2003
The relevant Sections within those Statutes are highlighted as follows:
Contraception, Sterilisation, and Abortion Act 1977
46 Conscientious objection
(1) Notwithstanding anything in any other enactment, or any rule of law, or the terms of any oath or of any contract (whether of employment or otherwise), no medical practitioner, nurse, or other person shall be under any obligation—
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(a) to perform or assist in the performance of an abortion or any operation undertaken or to be undertaken for the purpose of rendering the patient sterile:
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(b) to fit or assist in the fitting, or supply or administer or assist in the supply or administering, of any contraceptive, or to offer or give any advice relating to contraception,—
if he objects to doing so on grounds of conscience.
(2) It shall be unlawful for any employer—
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(a) to deny to any employee or prospective employee any employment, accommodation, goods, service, right, title, privilege, or benefit merely because that employee or prospective employee objects on grounds of conscience to do any act referred to in subsection (1); or
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(b) to make the provision or grant to any employee or prospective employee of any employment, accommodation, goods, service, right, title, privilege, or benefit conditional upon that other person doing or agreeing to do any thing referred to in that subsection.
(3) Every person who suffers any loss by reason of any act or omission rendered unlawful by subsection (2) shall be entitled to recover damages from the person responsible for the act or omission.
New Zealand Bill of Rights Act 1990
13 Freedom of thought, conscience, and religion
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Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
15 Manifestation of religion and belief
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Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
Health Practitioners Competence Assurance Act 2003
174 Duty of health practitioners in respect of reproductive health services
(1) This section applies whenever—
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(a) a person requests a health practitioner to provide a service (including, without limitation, advice) with respect to contraception, sterilisation, or other reproductive health services; and
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(b) the health practitioner objects on the ground of conscience to providing the service.
(2) When this section applies, the health practitioner must inform the person who requests the service that he or she can obtain the service from another health practitioner or from a family planning clinic.
3/ Key Moments in my Professional Journey
I’d like to reflect now on some key moments in my professional journey and show how the laws outlined here have impacted on my behaviour and freedom of conscience issues.
My interest in ethics and the issues around abortion, underpinned in part, my decision to apply for Auckland Medical School. After graduation, I gained a Diploma in Obstetrics and Gynaecology from Otago University. This was to improve my knowledge and to add to my professional credentials. I felt these would complement sheer enthusiasm for a cause.
During my obstetrics attachment at the Hutt Hospital near Wellington, I was fortunate to work with a colleague of like-mind. Knowing that one is not alone in the prolife battle bestows extra courage. In the light of my conscientious objection to perform, or assist in the performance of abortions, I declined to admit patients for such procedures and to operate or assist in theatre. My stance was respected by members of the ward team including my consultants.
In 1988, the subject of New Zealand’s abortion laws was very topical. I was asked to be in a televised debate with Dr Margaret Sparrow, a pro-abortion activist. The debate chairman was Lindsay Perigo. So it was that on TV One, I announced to the country that I was expecting our first baby! At six weeks, this tiny person needed only time, nutrition and good fortune to grow. I recall asking Dr Sparrow “what am I having if not a baby?” My husband and I were sad that I miscarried a few weeks later, but we believe that our first conceived child played a special role in the abortion debate. The contest resonated with television viewers, many of whom wrote to support my position.
A decade later, while working in Wellington, I arrived one day to find the surgery’s walls plastered in defamatory posters. In the dark of night, a radical feminist group had stuck-up notices warning the public not to visit me! I was portrayed as a bigoted doctor by my refusal to refer for terminations. The graffiti was aimed to shock and it was removed promptly. I was cheered, however, by a friend and colleague who, when told of the incident declared “You lucky thing! You should feel proud of yourself. I’m disappointed that they left me out of their protest!”
In 2007, a student came to see me complaining of ‘being tired’. Having asked her permission, I did a pregnancy test. It was positive. She was surprised and apprehensive about the future. I told her when her baby was likely to be due and I offered her my professional support. She did not ask for a termination. I suggested that if she wished, she could return to see me with her mother for a follow-up review. I also asked how she felt her mother would react to the news of this unexpected pregnancy. She answered that her mother was strongly opposed to abortion.
The next day both women came to see me. I realised quickly that my patient’s assessment of her mother’s viewpoint was patently wrong! The older woman was extremely upset and she was adamant that the option of an abortion be offered to her daughter. I replied that I would not arrange a referral for a termination explaining my reasons carefully. I also informed the patient that should she want to explore that particular reproductive service, she could see another doctor or a family planning clinic.
By this time, the pregnant teenager’s mother was very angry. She demanded a referral letter which I declined to write. She then stormed out saying she had a hair appointment! The bewildered daughter remained in the room. I clarified the situation and offered every support if she wanted ongoing antenatal care.
A short time later, I was the recipient of a formal complaint lodged by the patient’s mother with my practice manager. A copy of the complaint had also gone to the Medical Council of New Zealand which in turn had sent it to the Health and Disability Commissioner. I was accused in a defamatory tirade that I had described her daughter as being a murderer if she had an abortion; that I was a terrible bigot and that I should be made to stop practicing in such a dreadful manner!
I responded to the Health and Disability Commissioner saying that I had in no way behaved in the manner outlined in the letter of complaint. I also stated that I was in no position to divulge much about the case as the complaint had come from a third party. What proof did they have that my patient was in any way unhappy with my care? I insisted that I had behaved professionally and lawfully at all times. I also commented that all patients attending my practice can access the Code of Patient Rights in the Medical Centre’s waiting room.
The complaint was subsequently withdrawn because it transpired that my patient did not support the complaint. It had no substance! But this was a gruelling time and confirmation that when faced with upset people who are unable to get their way, one must still be professional, kind and patient.
In May 2009, I spotted an electronic notice saying that the Medical Council of New Zealand was calling for submissions on a draft statement called “Beliefs and medical practice” The title caught my eye. What was this about? I proceeded to read it and the rest, as they say, is history. I was alarmed by the draft statement because I knew that if published, it would effectively rescind my lawful right to conscientious objection. I would be unable to refuse to be involved in the abortion referral process without potentially incurring the wrath of the Medical Council, the Health and Disability Commissioner and the Health Practitioners Disciplinary Tribunal.
I wrote a submission to the Medical Council critiquing the draft statement explaining why it was unnecessary and unethical. In addition, I was also contacted by several colleagues as they too were very disturbed by the draft statement.
We had a challenge to meet! The New Zealand Health Professionals Alliance was formed and incorporated in 2009. Like-minded health professionals, who were keen to protect the lawful right to conscientious objection and who had a concern for the protection of patients from conception until natural death, flocked to join the NZHPA. Members now include many nurses and doctors from all over New Zealand.
The NZHPA applied to the High Court for a Judicial Review of the Medical Council’s draft statement. This was heard in Wellington in November 2010. Mr Harry Waalkens QC argued our case. The 2-day hearing followed months of preparation that included the discovery of documents, the submission of affidavits and attendance at countless meetings with our legal team. It was a daunting and exhilarating business.
Justice Alan MacKenzie presided over the case that I, as first plaintiff, and the New Zealand Health Professionals Alliance Incorporated, as second plaintiff, made to the High Court in Wellington. Our lawyer told the Judge that the Medical Council of New Zealand (the defendant) would be acting outside its statutory role if it published the draft statement on “Beliefs and Medical Practice.” On December 2nd, 2010 the Judge issued his findings. He found in our favour. Costs were awarded to us and the right to conscientious objection was upheld.
The Chairman of the Medical Council voiced his dissatisfaction with the outcome, despite having said before the hearing that the Council would welcome a declaration from the High Court. Consequently, the MCNZ applied to the Court of Appeal to dispute aspects of the Judge’s ruling. The case, including an NZHPA cross appeal, was set to be heard in March 2012.
Thankfully, in September 2011, both parties to the Court Case agreed to a stay of legal proceedings. The Medical Council consented to withdraw its draft statement on “Beliefs and medical practice” and all litigation around the matter ceased. Publication of the offending document was halted permanently.
The NZHPA took no pleasure in seeking a Judicial Review of the Medical Council of New Zealand’s actions. However, we had felt obliged to try and protect every health practitioner’s lawful right to conscientious objection. We believed this universal principle was in jeopardy at that time. In September 2011 the legal proceedings were over. The principle of freedom of conscience in health care remains protected in New Zealand law.
4/ Conscientious Objection and Antenatal Screening for Down Syndrome and other conditions
In April 2012 I was intrigued to get an email from someone I had never met. He was Mike Sullivan from Whangarei. Since that fateful day, I have had literally dozens of emails from Mike. He is nothing if not tenacious! I admire what he has done to raise our collective awareness about the potential risks inherent in the Ministry of Health’s Antenatal Screening Programme for Down Syndrome and other conditions.
Since first talking to Mike Sullivan, I attended a workshop on the screening programme hosted by the New Zealand College of Midwives and the Royal New Zealand College of General Practitioners. It was disconcerting to be told at the meeting that doctors would be obliged to be actively involved in the screening protocol should a pregnant woman present for care (ie arranging blood tests, nuchal scan and follow-up).
Three doctors at the workshop spoke out against aspects of the programme including their opposition to the compulsory language in the information sheet for health professionals which stated that general practitioners and midwives were obliged to participate in antenatal testing.
We explained to the workshop leaders that it was unlawful to compel doctors and midwives to arrange antenatal screening for Down syndrome and other conditions. To do so, would be to defy S174 of the Health Practitioners Competence Assurance Act especially in light of Justice Allan MacKenzie’s ruling in December 2010.
I subsequently phoned the Manager of Antenatal and Newborn Screening in the National Screening Unit. She acknowledged that the printed material for midwives and doctors would be amended to reflect the law. She agreed that it cannot be compulsory for a maternity provider to personally arrange antenatal screening tests should the provider hold a conscientious objection to doing so. Amended screening guidelines were published in February 2013. They state that a patient seeking antenatal care must be advised of the screening programme for Down syndrome and other conditions. It is optional, not obligatory, for a pregnant women to participate in the screening programme.
Maternity providers who have a conscientious objection to being involved with antenatal screening for Down syndrome and other conditions can invoke section 174 of the Health Practitioners Competence Assurance Act. Their maximum obligation is to advise the patient of the screening programme and that she may see another maternity provider if she requests it.
5/ What challenges lie ahead?
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We must keep proclaiming the humanity of the embryo and foetus – the unborn child from conception to birth is a human being and killing the innocent, however expedient this may appear, is never morally right.
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We must respond to the culture of choice. The idea that we can simply choose whom to include in the category of human beings, as a matter of personal or parliamentary taste, must be challenged. It cannot just be a matter of choice. We cannot choose to kill neighbours or spouses and nor can we choose to kill any member of the human family. When women think that pregnancy is death to their planned life story, we need to help them, not only to revise their proposed biography, but also to be less afraid of the revised version.4
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We can promote publicly and privately, the special power of sex. We need a renewed respect for sexual activity and its capacity to create unique individuals.
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We should be vigilant and wise. If anyone can get elected into to Parliament then that is a great goal. Legislators influence peoples’ behaviour and Parliament is an arbiter of social customs. If we want to change our communities and culture, it’s no good to complain constantly about those in authority. We will achieve more if our message is internally-consistent, well-argued and well-presented.
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We must protect reasonable legislation that exists already in New Zealand. Parliament must keep the abortion law within the Crimes Act and not decriminalise it. Decriminalisation of abortion is an express goal of the abortion law reform movement and some political groups in New Zealand.
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Section 174 of the Health Practitioners Competence Assurance Act must be retained in our legislation. This upholds freedom of conscience and it protects the right to conscientious objection for health practitioners.
References:
1. Fisher A, ‘Conscience: the crisis of authority’, in Catholic Bioethics for a New Millennium ( Cambridge Press 2012) p38
2. J.H.Newman An Essay in Aid of a Grammar of Assent (1870;ed.I Ker, Oxford University Press, 1985)
4. Fisher A, Catholic Bioethics for a New Millennium 2012 p 179