A healthcare provider may lawfully refuse to provide some medical services to his patients on the grounds of his beliefs, conscience or faith. When this happens, he is said to have conscientiously objected to treating his patient.
It is instructive to note that this is not circumscribed to refusal of a treatment as a direct activity of a health care professional, but also spans to levels of participation in such treatments like; providing information, counselling, examination, assistance, diverse level of participation in the treatment, referring to a colleague who does not object, etcetera.
This right is in tandem with Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides for freedom of conscience, thought and religion. Just like most rights create a level plain ground for people to thrive, the right of conscientious objection is aimed at protecting health practitioners and is in no way a license for the practitioners to impose their beliefs on a patient.
In fact, the National Health Act under the Rights of Health Care Personnel. In Section 21.-(1) and (3) provides: “Subject to any applicable law, the head of the health Rights of establishment concerned may in accordance with any guideline determined by the Minister, Commissioner or any other appropriate authority, impose conditions on the services that may be rendered by a health care provider or health worker on the basis of health status except if the health personnel claims a conscientious exemption. (3) Without prejudice to section 19(1) of this Act and, except for Psychiatric patients, a health care provider may refuse to eat a user who is physically or verbally abusive or who sexually harasses him or her, and in such a case the health care provider should report the incident to the appropriate authority.”
Thus, citing moral reasons, many doctors refuse to perform or in other ways participate in abortions. Pharmacists have refused to fill prescriptions for emergency contraceptive medications and for birth control in general. Increasingly, states and municipalities have legislated ‘‘conscience clauses’’ giving providers, such as physicians and pharmacists, to refuse to provide health care services.
The development of conscientious objection among providers is complex and challenging. There are good reasons to accommodate conscientious objections of clinical providers. However, the rights and beliefs of the provider, when exercised, necessarily have a potential impact on a patient’s health and/or their access to care. With this in mind, professional societies have made it incumbent on the provider with a conscientious objection to minimize, if not eliminate, the impact of their conscientious objection on the delivery of care to the patients they serve. Further, they should minimize the impact on the medical system in which they serve patients.
The Codes of Medical Ethics in Nigeria according to the Rules of Professional Conduct for Medical & Dental Practitioners provides that a physician shall always bear in mind the obligation of preserving human life. A physician shall owe his patients complete loyalty and all the resources of his science.
The code goes further to state that “Practitioners shall be at liberty to choose whom they will serve in rendering their professional service but they shall endeavour to render service without discrimination in an emergency to the best of their ability and according to the prevailing circumstances. “Practitioners shall have absolute discretion and authority, free from unnecessary non-medical interference, in determining when to give their services, the nature of care to be given to a patient under their care and must accept responsibility for their actions.”
Elsewhere, professional societies have addressed this issue through professional statements. Most follow the Council of Medical Specialty Societies statement on ethics, which states the following:
The Physician’s primary, inviolate role is an active advocate for each patient’s care and well-being. The physician’s commitment to patients includes health education and continuity of care. Physicians should resolve conflicts of interest in a fashion that gives primacy to the patient’s interests.
This general statement serves as a simple, powerful reminder of the professional obligation of physicians. The most compelling constraint on accommodating COs is to protect patients from harm that results from not receiving a requested medical service. To that end, all conflicts, when they arise, should resolve in favour of the needs of the patient.
Physicians have a responsibility to serve the health care needs of all members of society, and physicians have an ethical obligation to preserve and protect the trust bestowed on them by society. These two statements acknowledge that health care, while arguably not a right, is clearly a public good that can be dispensed only by those individuals licensed to do so. To protect patients from potential harm that might arise from this monopoly of sorts, professional societies charge physicians with the obligation to provide their expertise to all members of society. To that end, physicians cannot restrict their practice based on gender identity, sexual orientation, religion, or other reasons, except when defined by their specialty and scope of practice (for example, an adult physician caring for an infant).
It is also instructive to consider the Scottish case of Doogan v NHS Greater Glasgow & Clyde Health Board [2012] CSOH 32 at [15], wherein the Outer House of the Scottish Court Session through Lady Smith reasoned inter alia, thus; “nurses and midwives should give careful consideration when deciding whether or not to accept employment in an area that carries out treatment or procedures to which they object in response to a claim of statutory conscientious objection protection.”
Okeke writes from the Centre for Social Justice (CSJ) Nigeria.
