Marika Warren is an Assistant Professor in the Department of Bioethics, Dalhousie University.
In early July The College of Physicians and Surgeons of British Columbia dismissed a complaint against Dr. Ellen Wiebe made by the Louis Brier Home and Hospital, an Orthodox Jewish long term care facility. Dr. Wiebe had provided medical assistance in dying (MAiD) to a patient who resided in Louis Brier who had requested it. She thereby contravened the Home’s policy. Cases such as these are increasingly likely as the policies of institutions exercising conscientious objection conflict with both patients’ interests in accessing MAiD (and other services) and providers’ interests in practicing with integrity. One way to resolve such conflicts would be to recognize a claim to conscientious provision of health care services that parallels the claims of individuals and organizations to conscientious objection.
Conscientious objection provides protection for individuals who find their deeply held values at odds with the way that they are expected to act in their role. In health care, this means that the patient’s interest in receiving a particular service or treatment is in tension with the provider’s interest in maintaining their integrity. In the past conscientious objection has largely been associated with termination of pregnancy; however, the legalization of MAiD has raised another common scenario for conscientious objection. This tension is negotiated by allowing a provider to refuse to provide care as long as they refer the patient to someone else, thereby ensuring ongoing care. Organizations have asserted similar claims to institutional conscientious objection and, while these claims are more controversial, they have generally been accepted within health care systems in Canada.
Conscientious provision is the provision of a legal, clinically appropriate health care service by a health care provider acting within their scope of practice to a consenting patient on grounds of values (ethical, professional, religious, or other) in a setting where providing a service is prohibited by institutional policy or precedent within an organization.
Conscientious provision parallels conscientious objection. It provides protection for individuals who find their deeply held values at odds with the services that they are prohibited from providing in their professional capacities, where they would be acceptable were it not for an organization’s values-based objection to them. If we allow for conscientious objection as a way for providers to maintain their integrity, we should also allow conscientious provision in order to achieve the same objective.
Conscientious provision is also connected to patient interests. It makes it easier for patients to obtain desired and needed health care services in the face of institutional conscientious objection, and meeting patients’ health needs is at the core of health care providers’ professional values and identities.
One of the essential characteristics of fairness is that we treat like situations alike. In order to justify permitting conscientious objection but not conscientious provision, conscientious provision must be relevantly different from conscientious objection. Otherwise, conscientious provision warrants similar recognition in law and policy to conscientious objection. Below I identify some potential differences and demonstrate that they do not distinguish between conscientious provision and conscientious objection.
- Action and inaction: A critic of conscientious provision might point out that conscientious objection involves inaction by a provider, while conscientious provision involves action. But conscientious objection is not focused on an action itself; it is about the significance of an action within a system of values. Conscientious provision similarly addresses what it means for providers when they cannot act in ways that accord with their deeply-held values.
- Logistics: A critic might also point to logistical differences between conscientious provision and conscientious objection. For conscientious provision there is potentially a need to gather material and human resources to support the provision of a treatment or service and there are considerations around organizational liability. However, honoring conscientious objection requires organizational management as well; there is a need to develop policy and process, increased demand on human resources, and potential legal and fiscal repercussions for not providing clinically appropriate care.
- Reputational harm: An organization might experience reputational harm as a result of conscientious provision, and this could in turn affect fundraising and community support. But because organizations could plausibly incur similar reputational or operational harm as the result of conscientious objection, it does not represent a relevant difference.
- Organizational autonomy: Critics might point out that organizations are generally able to terminate employment or rescind privileges of providers who do not comply with organizational policy and guidance, whatever the reason for noncompliance. Conscientious provision might be seen as unfairly limiting an organization’s ability to function. Again, conscientious objection has the same effect. Both conscientious objection and conscientious provision exist to provide some degree of defense from institutional sanction when a provider refuses to act (or not act) in a particular way on the basis of their values.
Conscientious provision and conscientious objection apply equally to any situation where there are values-based reasons for objecting to providing particular health care services or for objecting to a refusal to provide particular health care services. While the argument that conscientious provision should be recognized and protected is spurred by MAiD in Canada, it is equally relevant to termination of pregnancy, therapies for patients who are transgender (including gender affirmation surgeries), withdrawal of potentially life sustaining treatment, and prenatal genetic diagnosis, among others.
Some argue that organizational conscientious objection should be eliminated entirely. Nothing in this argument would weigh against such an approach. As long as organizational conscientious objection is permitted, however, conscientious provision provides a way to meet patient needs and allow providers to practice with integrity. If we respect conscientious objection then fairness requires us to respect conscientious provision.