A matter of conscience
Posted on 30 January 2013 by Julian Sheather
The media made quite a fuss recently about the European Court of Human Rights finding that British Airways had unfairly discriminated against an employee, Nadia Eweida, in refusing to let her visibly wear a crucifix.
Apparently David Cameron tweeted his delight with the judgment. But by the time the case reached Strasbourg, British Airways had long rendered its uniform policy more permissive. And the background clash of rights notwithstanding, the freedom to wear a small crucifix never seemed to me wildly at odds with the freedom of a corporation to manage its image: a no-brainer for reasonable accommodation surely?
More interesting in some ways were the cases that fell. Shirley Chaplin is a geriatric nurse. She was prevented from wearing a necklace — in her case a crucifix — on health and safety grounds — her safety, the safety of patients — and complained of discrimination. Gary McFarlane is — or was — a Relate counsellor. His Christian beliefs prevented him from providing psycho-sexual counselling to same-sex couples and so he lost his job.
Among the reasons given in the McFarlane case were that he would have known before he took the job that it might involve such work. Slightly to my disappointment, the court didn’t linger over the ethical conflicts, merely finding that the balancing of these freedoms or interests fell within the UK’s 'margin of appreciation': that the UK was better placed than Strasbourg to assess whether such restrictions were necessary and proportionate.
Lillian Ladele’s case was arguably the most challenging. A devout Christian, she held that same-sex civil partnerships were contrary to God’s law. In 2002 she became a registrar of births, deaths and marriages at Islington Council. In 2005 the Civil Partnership Act 2004 came into force, providing for the legal registration of same-sex civil partnerships.
Initially the council was flexible, permitting her to share work with colleagues so she did not have to register same-sex partnerships. But there were rota difficulties, and homosexual colleagues complained of discrimination and victimisation. Her appeals through various domestic tribunals were unsuccessful.
Given that Islington was explicitly committed to targeting 'discrimination based on age, disability, gender, race, religion and sexuality…' this looks like one of those dilemmas dreamt up specifically to twit liberals. Why is it more acceptable to discriminate against Mrs Ladele’s religious beliefs than those who seek same-sex civil partnerships? How should we proceed where the beliefs of protected groups are incompatible?
The Employment Appeal Tribunal held that '…the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy.'
Two judges disagreed with the majority view in Strasbourg. In a fulminating opinion judges Vucinic and De Gaetano held that, “given the cogency, seriousness, cohesion, and importance of her conscientious objection… it was incumbent upon the local authority to treat her differently from those registrars who had no conscientious objection…instead of practising the tolerance and ‘dignity for all’ it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness.”
The obligation to treat Mrs Ladele differently nicely invokes Aristotle’s conception of justice as involving treating like cases alike and unlike cases differently, in accordance with the relevant distinctions between them. Justice does not require that everyone is treated the same. Consider taxation: taking the same amount from everyone would certainly be treating them the same, but unless you are a radical egalitarian it would hardly be treating them justly, given the existence of vast income differentials.
Conscientious objection is a live issue in medicine. Recent research suggests that, given the opportunity, significant numbers of medical students would seek to exercise a conscientious objection. This could extend to a refusal to be involved in treating patients of the opposite sex, or patients whose ill health arises from alcohol or tobacco use.
Given the prevailing political pluralism, given the co-existence in our culture of different value systems, to what extent should medicine accommodate such objections? Should those whose consciences differ be treated differently? What forms of conscientious objection should be tolerated and on the basis of what criteria?
To an extent we already have practical answers to some of these questions. The law provides for a conscientious objection in relation to abortion and some aspects of fertility treatment. The GMC takes a permissive approach: doctors can decline to provide any treatment to which they are opposed, as long as there is time for others to intervene and the patient is not disadvantaged. The GMC is less liberal with medical students, requiring them to fulfil the core obligations of the medical curriculum.
The BMA, whose guidance is advisory, recommends doctors restrict their objections to those protected in law and to withdrawing life-sustaining treatment from adults lacking capacity in cases where another doctor is willing to take on the patient’s care.
Given this spread of opinion, and given the importance of the issues, is there anything we can identify in the way of guiding principles? This is probably one of those areas that will remain shy of exact distinctions, but a couple of things come to mind. The first is to ask whether and to what extent the exercise of a conscientious objection is compatible with the purposes of medicine. And the second is whether the issue in hand achieves a certain level of that 'cogency, seriousness, cohesion, and importance'.
Although again neither of these is going to give us exact distinctions and precise answers they would nonetheless support a distinction between an objection to abortion and an objection to treating or investigating patients of the opposite gender.
Not many doctors are called upon to perform abortions, but the majority will examine and treat patients of the opposite sex. The latter objection looks like it is seriously in conflict with the proper purposes of medicine. And abortion involves the destruction of a biological human life. For those who believe that moral value arrives at conception, abortion is a very grave act indeed. It is difficult to see how treating somebody of the opposite gender could achieve the same level of seriousness.
Julian Sheather is BMA ethics manager. The views he expresses in his blog posts are entirely his own.