Ethicists conscientiously objecting: an ontological dejustification

Introduction

It should go without saying that clinical ethicists, like other health-care professionals, have the right to abide by their own set of personal moral beliefs. Or should it? Clinical ethics is on the precipice of professionalization. The first generation of ‘professional’ clinical ethicists came to the discipline through a variety of related backgrounds, such as spiritual care, social work, medicine, law and academic philosophy. These first-generation ethicists are currently making way for the next generation, which consists of individuals trained specifically in clinical ethics at both academic and clinical levels. Not having the benefit of training and experience in other clinical disciplines, the second generation will require support and guidance from yet-to-be-developed professional associations and from senior ethics mentors. Until clinical ethics professionalizes, there remains a vacuum in training standards, codes of ethics, clinical performance standards and so on. The result of this vacuum is that emerging ethicists have no framework within which to contextualize some of the very real dilemmas they regularly face in their work, including the possibility of conscientious objection.

Among professionalized groups in health care, there is recognition that each practitioner has their own moral conscience. This recognition has led to the oft-discussed right to conscientious objection. Several popular examples of this right to such objection spring to mind. We hear of physicians refusing to perform or even refer patients to abortion services, ^1–3 of pharmacists refusing to prescribe emergency contraceptives, ^4–8 and of health-care teams refusing to provide what in their opinion are medically futile interventions to certain patients, both young and old (the Manitoba case of Samuel Golubchuk ⁹ and the more recent Sunnybrook Hospital case in Toronto ¹⁰ are prime examples). In all of the talk of health-care providers having a fundamental right to declare non-participation in acts or discussions that violate their moral integrity, one never hears talk of ethicists having this right.

Indirectly, this topic poses an important ontological question: what does it mean to be an ethicist? Ethicists are versed and practised in moral reasoning. Attending to morally controversial, troubling and ambiguous cases is, presumably, one of the fundamental roles of the clinical ethicist. Organizations retain the services of clinical ethicists precisely because they are trained and posses the skills necessary to deal with difficult cases while remaining objective, neutral and unbiased. Quite literally, moral issues are the raison d’être of ethics consultation. ¹¹ It is questionable, however, to suggest that ethicists should not have their own set of moral boundaries or biases. As a result, and given that there is no obvious reason to believe that one person's moral integrity is more worthy of defence than that of another person, it could be argued that ethicists have the same right to conscientious objection as other professionals in health care. How do we reconcile this tension between moral boundaries, and the fundamental task ethicists have to expose themselves to morally disconcerting situations? In the language of ethics, how should we reconcile the tension?

Discussion

There are a variety of ways to answer this question. The most straightforward approach would be to say that – given they have consciences and presumably find certain things morally objectionable – ethicists should have the right to conscientious objection. Rather than showing why ethicists should have the right to conscientious objection, this argument suggests that the burden lies on justifying why they shouldn't. The fundamental question here is: how are ethicists, as persons with moral integrity, any different from other health-care providers? Suppose we have a very competent ethicist who also happens to be a devout Roman Catholic. While this ethicist proves quite capable of dealing with a wide variety of morally difficult questions, he refuses to participate in discussions around termination of pregnancy, or withdrawal of life-sustaining therapies. Should this ethicist have the right to do this? If a devoutly Roman Catholic and exceedingly competent obstetrician can refuse to provide terminations of pregnancy or even refer patients to a physician that would, why can't an ethicist conscientiously object to participation in these types of cases?

To take this argument a step further, those in favour of allowing ethicists the right to conscientious objection might make the following supplementary argument. By stating that ethicists should not be permitted to conscientiously object, an inequality is necessarily instantiated between the worth of different providers’ moral integrity based on the type of job they perform. Yet, the right to conscientious objection seems to be – at least philosophically – a fundamentally human right. As the American Academy of Pediatrics Committee on Bioethics notes in their policy statement on the issue:

Conscience is closely related to integrity. Performing an action that violates one's conscience undermines one's sense of integrity and self-respect and produces guilt, remorse or shame. Integrity is valuable, and harms associated with the loss of self-respect should be avoided. This view of conscience provides a justification for respecting conscience independent of particular religious beliefs about conscience or morality. ¹²

Human rights are rights held by virtue of being a human person, not by practising certain professions. Presumably, one would agree that, regardless of their profession, no one should be compelled to participate in acts that violate their moral integrity. If human rights became contingent on whether one belongs to a certain profession, injustices of epic proportions would ensue. Therefore, ethicists should have this fundamental right to conscientious objection. The devout Roman Catholic ethicist should be allowed to abstain from certain conversations, just as the obstetrician is able to.

This stance is problematic for the following reasons. First, it seems to presuppose that individuals do not exercise freedom of choice in choosing their professions, and are only able to exercise conscientious objection while in their jobs. Thus, a strong counter argument would be that an individual interested in becoming an ethicist is presumably aware of the general types of situations that arise in the practice of health-care ethics. For the most part, these situations are morally charged, controversial and commonly troubling. In assessing whether or not to join an ethics service, a person has the real ability to exercise their human right to conscientiously object to the joining of that profession. By entering into clinical ethics, one could suggest that a person is providing blanket consent to what is, in a very basic sense, a certain type of working environment. Here, one could caution a person not to enter into clinical ethics work if they are unable to bracket their moral sensibilities, just as one would caution a person not to become a physician if they have a problem with blood, or to become a roofer if they have a problem with heights. Quite aside from the rights that one has, certain pragmatic assessments need to be made by individuals as they enter a line of work.

Second, the case of the ethicist conscientiously objecting to specific tasks seems more difficult to make than with other professions. The Roman Catholic obstetrician, for example, might argue that it is not their primary function as an obstetrician to perform terminations of pregnancy. Recognizing that it is a possibility in their profession, the obstetrician can reasonably claim that terminations do not represent a routine feature of their professional duty. In this sense, the obstetrician is not implicitly consenting to terminations of pregnancy in any reasonable sense by virtue of joining the profession. For better or worse, this same reasoning cannot be applied to ethicists. However, given that ethicists do not form a professional association with any official or recognized standards or competencies, moving forward with this phase of the argument will involve very basic ontological assumptions about the purpose of a practising health-care ethicist.

Primarily, the assumption is that the primary role of a clinical ethicist is to provide services related to ethics for health-care organizations and their constituents. Such services generally include education, consultation, organizational ethics activities and research ethics support. In all of these capacities, the ethicist deals with ethical issues. But what is an ethical issue? Generally, these issues include moral dilemmas, moral distress, issues related to values, cultural and religious differences, moral disagreements, conflicts of interest, conflicting principles and so on. More often than not, these issues centre on whether a given action or intervention is ‘right’ or ‘appropriate’. The common denominator with the vast majority of ethical issues, in basic terms, is that they are morally contentious. If individuals could deal with ethical issues effectively on their own, they would not require professional ethics services. Therefore, it is clearly the case that individuals require ethics services because they are dealing with situations that challenge their own moral sensibilities and reasoning. The professional ethicist who is educated in ethics and trained to understand and reason through complex ethical issues fulfils this need. In doing so, the primary task of the professional ethicist is to confront and help resolve issues that others have difficulty dealing with. Frequently, the ethicist is called only when others reach a level of discomfort that they are no longer prepared or able to deal with effectively. On this level, others rely on the ethicist to enter a situation of sometimes palpable discomfort and help to resolve the situation.

If one agrees that this general presentation of the ethicist's role is accurate, the possibility of conscientious objection becomes a serious problem. If the role of the ethicist is to deal with situations that are almost necessarily morally uncomfortable, and if conscientious objection most frequently arises in situations of moral discomfort, then an ethicist should, prima facie, not be able to conscientiously object. To say that an ethicist can conscientiously object is to both say that they have an obligation to perform a task and do not have an obligation to perform the same task. Granted, the first obligation to perform the task is professional, and the right to conscientiously object is moral. However, the opportunity to conscientiously object in the moral sense to routine aspects of a job can and should be done in advance of entering into a profession. In essence, the conscientiously objecting ethicist is a paradox, and an ethicist who is quick to express moral discomfort and objection is an ethicist of limited use. Unlike the obstetrician who might say that termination of pregnancy is not their primary task, the ethicist cannot possibly claim that it is not their primary task to deal with situations that cause moral discomfort. For the ethicist who does say this, they should perhaps reconsider their choice of profession. Moreover, given that ethicists only participate in discussions and do not actually perform the actions in question (e.g. abortion, withdrawal of life support), it could be argued that their claim to conscientious objection is weaker than those who must actually act. ¹³ It is also worth restating that this in no way removes the ethicist's human right to conscientious objection. The ethicist, like any other persons with human rights, has the right to object to the joining of a profession based on the tasks involved, and has the correlative right to leave a profession if they find that its primary tasks violate their professional integrity. What the above argument specifically suggests is that an ethicist should not have a right to conscientiously object to standard tasks arising from their role and also continue to be an ethicist.

This being said, some provisions and qualifiers should be made. This argument works only insofar as one is discussing tasks that can be understood as routine in one's practice. As a result, if the ethicists were asked to participate in a process that is not routine and is morally problematic, there does not seem to be any reason why they cannot conscientiously object while continuing to fulfil the role of ethicist. As an example, an ethicist might be asked to lie, or give illegitimate justifications for certain acts or processes. Not unlike any other person in these cases, the ethicist has a right to object to participation and also retain their job in doing so. There is no expectation, nor should there be, that any person participates in illegitimate or fraudulent processes as a part of their job. What is in question here, rather, are those difficult issues that an ethicist would be expected to deal with on a routine – perhaps even daily – basis. Interestingly, this form of reasoning might suggest that further discussion of other issues which frequently result in conscientious objection is necessary. Perhaps the obstetrician should be prepared to perform terminations of pregnancy, given the increase in demand. Similarly, the pharmacist should perhaps be willing to prescribe all forms of contraceptives, given the number of individuals seeking them. Perhaps this indicates that the right to conscientious objection changes as a profession evolves over time.

Also, this view of generally consenting to a certain work environment by virtue of joining a profession reinforces the pressing need to formally professionalize clinical ethics. In Canada, ethicists are not a regulated health profession, do not belong to a college or association and are not informed by any official standards of practice, professional guidelines or codes of conduct. In the absence of having some professional body that can inform current and prospective ethicists about what it means to be a health-care ethics professional, the above argument becomes more difficult to accept. While our description of the ethicist's role is probably not grossly inaccurate, it remains the case that there is no official endorsement or support of this view. Because ethics is practised differently in different locations, it is difficult to say that there is a general work environment that all ethicists should expect to encounter. As a result, the discussion above indicates a strong need to formally professionalize clinical ethics. Without doing so, individual ethicists are potentially subject to arbitrary expectations and have different rights and obligations depending on their local circumstances. A professional frame of reference is necessary when discussing issues such as conscientious objection, and health-care ethics is sorely lacking in this regard.

Similarly, this discussion on conscientious objection casts light on the competencies needed to perform ethics work effectively and appropriately. In relation to moral convictions, ethicists should be formally trained to recognize their own biases and deal with them effectively. While the ethicist who might conscientiously object based on moral beliefs is of limited use, an ethicist who goes ahead and provides guidance based on those personal moral beliefs is dangerous. There is a common agreement that it is not the role of the ethicist to bring their moral biases into a contentious situation. Rather, the presumed role of the ethicist is to act in as neutral and objective a fashion as possible, to provide information, to clarify concepts, to ensure an acceptable decision-making process, and to be personally disinterested in particular outcomes. Without the particular skills needed to look inward and recognize their own moral dynamics, an ethicist can be of more harm than good.

Conclusion

Given what appears to be the nature of the profession, clinical ethicists are not in a strong position to conscientiously object to situations that may cause them moral discomfort. Assuming that the role of an ethicist is to deal with ethically challenging situations that frequently cause others to feel moral discomfort, it would be counter-intuitive to allow them to exempt themselves from situations in which their services would be most effective and necessary. Instead of being permitted to excuse themselves from dealing with issues that threaten their moral beliefs, prospective ethicists should assess their ability to deal with morally challenging situations prior to entering the profession. Prospective ethicists always retain their ability to conscientiously object to becoming ethicists, while current ethicists who are unable to perform routine tasks based on moral convictions always retain the right to leave the service at any time.

At the same time, this argument highlights the need to move forward with formal professionalization and standardization of health-care ethics. Also, a discussion on conscientious objection relates closely to the competencies needed to be an effective ethicist. ¹⁴ Understanding one's moral biases is absolutely crucial in the practice of health-care ethics and, among other things, should be incorporated into formal training of prospective ethicists. Without a formal understanding of what it means to be an ethicist, it is difficult to point to expectations that ethicists are asked to fulfil. At the present time, this argument rests only on a basic view of what an ethicist does, and why.

Conflicts of interest: None declared.