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The New Bioethics
A Multidisciplinary Journal of Biotechnology and the Body
ISSN: 2050-2877 (Print) 2050-2885 (Online) Journal homepage: https://www.tandfonline.com/loi/ynbi20
Conscientious Objection and Clinical Judgement:
The Right to Refuse to Harm
Toni C. Saad
To cite this article: Toni C. Saad (2019) Conscientious Objection and Clinical
Judgement: The Right to Refuse to Harm, The New Bioethics, 25:3, 248-261, DOI:
10.1080/20502877.2019.1649863
To link to this article: https://doi.org/10.1080/20502877.2019.1649863
Published online: 09 Sep 2019.
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Conscientious Objection and Clinical
Judgement: The Right to Refuse to Harm
Toni C. Saad
Cardiff and Vale University Health Board, Cardiff, UK
This paper argues that healthcare aims at the good of health, that this pursuit
of the good necessitates conscience, and that conscience is required in every
practical judgement, including clinical judgment. Conscientious objection in
healthcare is usually restricted to a handful of controversial ends (e.g. abor-
tion, euthanasia, contraception), yet the necessity of conscience in all clinical
judgements implies the possibility of conscientious objection to means. The
distinction between conscientious objection to means and ends is explored
and its implications considered. Based on this, it is suggested that conscien-
tious objection, whether to means or ends, occurs when a proposed course of
action comes into irreconcilable conflict with the moral principle ‘do no harm’.
It is, therefore, concluded that conscientious objection in healthcare can be
conceived as a requirement of the moral imperative to do no harm, the
right to refuse to harm in regard to health.
keywords Conscientious objection, conscience, clinical judgment, abortion
Introduction
While events outside of healthcare have prompted discussion about the accommo-
dation of conscientious objection (CO), it is CO in healthcare which has, in recent
years, drawn the most interest –quite understandably, when matters of life, health
and death are at stake. Much of the attention it has received in the literature can
be fairly described as hostile.
1
In view of this, it is reasonable to ask whether health-
care is a special case regarding CO; specifically, whether there is something about
healthcare which makes CO necessary. A positive answer might imply that other
1
Examples of this hostility include the argument that ‘to invoke conscientious objection is to deny the fundamental obli-
gation of healthcare’and that conscience protections should be radically limited because objectors are not conscripts
(Stahl and Emmanuel 2017, pp. 1383–1384), and it has also been claimed that ‘medical professionals have no moral
claim in liberal democratic societies to the accommodation of their individual conscientious objections’(Schuklenk
and Smalling 2017, p. 240). Julian Savulescu infamously stated that
a doctors’[sic] conscience has little place in the delivery of modern medical care …If people are not prepared to
offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should
not be doctors. (Savulescu 2006, p. 297)
the new bioethics, Vol. 25 No. 3, 2019, 248–261
© 2019 Informa UK Limited, trading as Taylor & Francis Group DOI 10.1080/20502877.2019.1649863
fields do not require CO. Alternatively, a negative answer might suggest that health-
care is not essentially different from the rest of life’s pursuits, and should, therefore,
be governed by the same rules when it comes to the accommodation of CO.
This paper argues that, while its stakes are arguably higher than those of other
fields, healthcare is not especially moral, because it is governed by the same moral
principles which all members of human society are bound to. In other words,
while healthcare has the potential to do more harm than other occupations, it is
not in a different moral category. For various reasons, CO in healthcare might be
considered especially important or serious, but, ultimately, because healthcare is
only one of many fields of moral action governed by the same principles of morality,
it is not categorically different.
It is argued that conscience is necessary for any moral pursuit and that for any
such pursuit to be coherent, conscience’s role in informing act and omission must
be respected. Therefore, CO obtains whenever external demands conflict irreconcil-
ably with the requirements of conscience, be it in healthcare or elsewhere. It follows,
then, that healthcare is not a special case as far as moral principle is concerned. The
morality particular to medicine is only general morality specified to medicine’s cir-
cumstances and goals.
The argument this paper defends begins with the premises that every pursuit aims
at some good, healthcare aims at the good called health, and, importantly, this good
is not merely a subset of arbitrary preference satisfaction.
2
Next, it argues that any
attempt to do good requires conscience because conscience is the instrument of prac-
tical reason. From this, it follows that conscience guides action and omission, and its
potential to be provoked to objection is necessary for its coherence. The distinction is
then made between conscientious objection to ends and conscientious objection to
means to illustrate the omnipresence of conscience and CO in clinical practice.
CO in healthcare is usually conceived as concerning a handful of ends about
which people fundamentally disagree. Yet, CO frequently arises to means, for
example, concerning decisions to not admit to the intensive care unit, and is
usually called clinical objection in the context of external demand or expectation.
What unifies these two sorts of CO is their obedience of the logic of practical
reason, the fundamental principle they hinge upon: ‘do no harm’. It is when harm
is in view that the conflict between the requirements of conscience and external
demand are escalated to CO, whether it is the end or the means which are objected
to, whether in healthcare or some other field.
It has recently been defended that the right to conscientiously object to what can
reasonably be conceived as killing, because this act is so serious, should be protected
by law in any society claiming to be liberal and pluralistic (Myskja and Magelssen
2018). The reasonableness of this position seems unmistakeable. The argument set
out here, however, is not only that CO to what can reasonably be conceived of as
2
Aristotle’s dictum at the opening of his Nichomachean Ethics sums up this idea well:
Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this
reason the good has rightly been declared to be that at which all things aim …Now, as there are many actions,
arts, and sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a vessel, that
of strategy victory, that of economics wealth. (Nic Eth I.1)
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 249
killing is reasonable, but that CO to what can be reasonably conceived as harming is
too.
3
Killing is only one of a great many possible harms, and it is not (just) the pro-
hibition of killing which controls the practice of medicine. We say ‘first, do no harm’,
not merely ‘first, do not kill’. (The latter seems rather too modest an ethical stan-
dard.) Since CO to ends and means arises from the conflict between a proposed
course of action and the imperative to do no harm, this paper’s conclusion is that
CO in healthcare is reasonable when it concerns what can reasonably be considered
harmful. In other words, there is no duty to intentionally cause harm –indeed, there
is a duty to not intentionally cause harm.
4
Hence, CO, in healthcare or elsewhere,
can be defined as the right to refuse to harm.
The law makes explicit provision for CO in healthcare in the Abortion Act 1967
and the Human Fertilization and Embryology Act 1990, and thus only in relation to
the two domains which these laws concern.
5
The General Medical Council’s(GMC)
guidance concerning clinical objections is broader:
If the patient asks for a treatment that the doctor considers would not be of overall
benefit to them, the doctor should discuss the issues with the patient and explore the
reasons for their request. If, after discussion, the doctor still considers that the treatment
would not be of overall benefit to the patient, they do not have to provide the treatment’.
(General Medical Council 2018, pp. 14–15)
6
It stands to reason that if a doctor considers a patient’s request to be positively
harmful (and so not of overall benefit to them), they have no obligation to
provide it. The GMC, therefore, recognizes no ethical duty to provide a treatment
or procedure which is positively harmful. The above extract does not explicitly
identify this sort of objection as conscientious, yet, since it casts it as an ethical state-
ment and not just a regulatory one, it seems to imply it. All this is to say that pro-
fessional guidance appears to accept in principle what this paper argues explicitly.
By way of caveat, this paper does not do the background work in political phil-
osophy to contextualize its ethical claims in political terms.
7
It, therefore, does not
seek to translate what is a primarily ethical argument about CO into the political
or legal sphere. Moreover, though this paper briefly considers some of what its argu-
ment entails for policy concerning the accommodation of CO, it does not provide
anything approaching fully-formed policy. It only concludes that, in order to be
3
This is not stated as a policy suggestion but as a statement of reasonableness. If it is granted that CO to what can
reasonably be perceived as killing is reasonable, and that it should, therefore, be protected in law, it seems to follow
that, if it is reasonable to conscientiously object to what is harmful, then it this sort of CO should also be protected
in law. This paper does not make the case for legal protection explicitly, however, and seeks only to show the reason-
ableness of conscientious objecting to what can be reasonably conceived of as harm.
4
The key word here is ‘intentionally’. Patients are frequently harmed by medical interventions (e.g. side-effects, compli-
cations), but this harm is –let us hope, at least –not deliberate harm. It might be foreseen or unforeseen, but it is certainly
not intended.
5
Despite this recognition of CO in the law, it has been argued that ‘In the UK, freedom of conscience needs a microscope
to be visible, at least when it comes to health care’(Oderberg 2019, p. 10). The scope of this paper, however, excludes a
discussion of the subject of the protection of conscience in law.
6
Similarly, when it comes to procedures requested for primarily religious or cultural reasons, the GMC’s guidance states:
‘If you do not believe that the procedure is of overall benefit to an adult patient, you must explain this to them. You are
not obliged to provide treatments in such cases’, (General Medical Council 2013).
7
See Myskja and Magelssen (2018, pp. 82–87) for how this can be done.
250 TONI C. SAAD
ethically consistent, a policy cannot prevent healthcare professionals from exercising
their liberty to not deliberately cause harm.
Additionally, although some keywords will be defined explicitly in the course of
this paper, the meanings of others, such as ‘health’and ‘harm’, are left deliberately
indeterminate, for reason that much of the argument presented here does not hang
on particular definitions of such terms. That said, while the argument works with
a variety of definitions of harm, the one in the author’s mind is specifically bodily
harm from the objective angle. So, CO in healthcare is the right to do refuse to do
bodily harm to another; and since healthcare aims a particular sort of good, it
follows that it should particularly avoid the sort of harm opposed to this good.
For reasons later discussed, this harm should be considered in relation to the
body’s functions and not merely in relation to personal preferences about how
one’s body should be manipulated. On a similar note, while this paper character-
izes CO as the right not to harm, it speaks of healthcare aiming at good. Clearly,
the opposite of doing harm is doing good, and, the first requirement of benefi-
cence is non-maleficence –hence ‘first, do no harm’. Doing good implies not
doing harm, and this is why CO obtains when harm is in view; when the
second part of the first principle of practical reason is violated, thus simul-
taneously neglecting the first part –‘good is to be done, evil is to be avoided’.
8
Hence, there is a reciprocal relationship between beneficence and non-maleficence,
which is illustrated by CO and justifies the way in which these concepts are used
in this paper.
Healthcare aims at beneficence
Healthcare is a pursuit which aims at health. There is at its core a moral impulse to
seek the good of the other, the relevant aspect of the good being health, in contra-
distinction to the many other goods (friendship, knowledge, esthetic experience,
etc.). Healthcare does not exist merely for the financial gain of its practitioners or
the arbitrary preferences of patients, but to achieve a good proper to itself:
health.
9
It aims to restore to human beings what has been lost to disease or disability;
to cure sometimes, relieve often, and comfort always, as the old dictum goes. Health-
care in its various forms is a natural response to the universal human experience of
disease. Hence, its norms –the standard by which we judge whether medicine is
good or bad –are not determined merely by convention, but in relation to the
end of health. This is another way of saying that medicine, as well as being regulated
externally by professional codes and regulations, is internally morally regulated. It
possesses an internal morality which transcends external norms which are not
specific to healthcare (Pellegrino 2001, pp. 561–563). There would be no doctors
if there were no disease, and so it follows that whether what is done in the name
of medicine can be considered good has something to do with its relation to
disease, and not only to legal or regulatory observance. Good medicine, therefore,
8
This aphorism has ancient roots but is often attributed to Thomas Aquinas.
9
As Aristotle put it, ‘the task of medicine is not to ensure that any old good should be where it belongs, but that health
should be’,Eudemian Ethics I.8.
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 251
cannot merely be defined in terms of conformity to external norms, but by confor-
mity to its internal and moral norms.
Let us put this to the test by considering an apparently banal case. If a patient were
to complain of not opening his bowels for a week, nausea and crampy abdominal
pain, assuming there is no underlying sinister illness requiring further investigation,
a doctor will explain to him that he is severely constipated, and, therefore, offer him
a hearty course of aperients. This mundane scenario, however, illustrates fundamen-
tal moral principles. The doctor in the scenario has: first, judged that the patient’s
condition is bad and that the alternative state of improved bowel function would
be better; second, made a judgement about what a proportionate therapy might
be; and third, decided that he ought to offer this therapy to the patient. He has
made a judgement about the end –to relieve constipation is good –and he has
made a judgement about the means –a course of aperients is an appropriate
means of achieving this good. He, therefore, concludes that he ought to offer it to
his patient. This implicit process obeys the form of practical reason. Even simple
clinical decisions issue from practical reason which identifies a good end and
makes a judgement about the means appropriate to achieving it. There is a dual
moral judgement at play –one about the rightness of ends and another about the
appropriateness of means (more on this later). Practical reason, by reference to
this dual judgement, has specified the moral principle ‘good is to be done’to this
everyday situation, where doing good means doing something to mitigate disease,
to promote health.
The premise that healthcare aims at health raises questions. What of the claim that
doing good in healthcare is merely doing what the patient wishes? Perhaps the
severely constipated patient wishes to remain so or desires assistance to exacerbate
his condition. What if it is the patient’s preference that their constipation progresses
to bowel obstruction requiring surgical intervention? Does anyone have a duty to
satisfy such a preference? The idea of having a duty to deliberately exacerbate a
patient’s constipation merely because they desire it, is repugnant to the practical
reason of the medical tradition –first, do no harm. Despite some inconsistencies,
healthcare operates with basic assumptions about the objectivity of harm and
good, what has been called the ‘pathocentric’assumption that medicine exists to
treat pathology (McAndrew 2019).
10
Therefore, to intentionally exacerbate
disease, to cause or worsen pathology, is to contradict the ethic of beneficence
which is central to healthcare. It follows that doing good to patients cannot be
reduced to arbitrary preference satisfaction; indeed, to merely satisfy a patient’s pre-
ferences could qualify as harm by healthcare’s own standard.
This is not to say that preferences are irrelevant. It might be entirely reasonable,
for example, for a patient to request aperient binstead of aperient a. Reasonable pre-
ferences fall within the scope of what can be considered beneficent, and a good
doctor accommodates these preferences. However, demanding to have one’s con-
dition deliberately worsened cannot be considered a reasonable preference in the
same sense. Healthcare does not exist merely to satisfy arbitrary preferences,
10
See McAndrew (2019) for a discussion of some procedures performed my doctors which do not treat pathology.
Examples he gives include abortion, contraception and euthanasia.
252 TONI C. SAAD
although a good doctor accommodates reasonable preferences. If anyone denies the
former, they must concede that absurd cases like the one described here place upon a
healthcare professional a duty to satisfy any preferences as far as the law and their
skill allows.
Another objection to this opening premise is the rather evident point that ‘health’
and ‘disease’do not have a universally agreed upon meaning. Indeed, broad defi-
nitions of health such as the World Health Organisation’s allow one to define
disease as anything less than ‘complete physical, mental and social well-being’
(World Health Organisation 2003) and thereby invest in each of these phrases ever-
expanding meaning (Callahan 1973). Though there is disagreement about how to
define disease (see Ereshefsky 2009), this is irrelevant to the present argument
because whatever definition of disease one holds, it is still assumed that disease
should be mitigated in order to do patients good (even if one thinks more should
be done beside this). The premise that healthcare aims to do good merely denies
that health is reducible to arbitrary preference satisfaction. So long as health is
not merely the state of having one’s arbitrary preferences satisfied by healthcare pro-
fessionals, the argument presented in this paper remains valid.
Beneficence requires conscience
The second premise of the argument is that doing good requires conscience. Every time
one tries to do good, one necessarily puts conscience to use. This is because exercising
conscience is not merely a gut feeling or an ‘essentially arbitrary dislike’.
11
Rather, it is
an act of reasoning whereby a general moral principle is applied to a specific situation
in order to generate a judgement about how one should or should not act.
Conscience forms every judgement of practical reason. Every conscientious judge-
ment is the conclusion of two premises: a general moral principle (e.g. it is wrong to
deliberately kill innocent persons), and a specific principle of fact or circumstance
(e.g. Socrates is a person). Conscience applies the first (general) premise to the
second (circumstantial) premise, to yield a judgement about how one should act
(e.g. it is wrong to kill Socrates). Thus, conscience is indispensable to practical
reason (Sulmasy 2008; Mercier 2012, pp. 259–262). Importantly, it is not the pre-
serve of the religious: ‘All moral decisions are decisions of the conscience insofar
as the conscience determines all moral acts, whether religious or non-religious in
origin’(Hardt 2007, p. 19).
By attempting to act rightly, we necessarily employ conscience. Though we might
only consider our conscience when its requirements conflict with external demands,
it is, nevertheless, in operation in all practical reasoning, including all clinical reason-
ing. It does the work of applying general principles to relevant circumstances every
time we try to act rightly, including every time a clinician considers the good of the
patient. Whenever healthcare professionals think about how to do good, they are
bound to use their conscience. The very invocation of the notion of good requires
this because it invites the application of general moral principles to the particulars
of the current situation. It is true that few would elaborate their moral decision
11
This phrase comes from Schuklenk and Smalling (2017).
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 253
using the structure laid out above, but any practical judgement maps onto this
formal structure of practical reason.
This claim is not affected by the obvious objection that different people come to
different conscientious conclusions. It is a matter of fact that there is much disagree-
ment about intermediate premises, as well as in the interpretation of facts. Yet, this is
irrelevant to the reality that seeking to do the right thing necessitates conscience,
whatever the outcome of conscience may be, and whatever notion of the right one
may have. Therefore, the point stands: healthcare aims at beneficence and to practise
beneficence necessitates conscience. The moral diversity this reality usually entails
does not seem to rule out CO –indeed, it arguably requires the opposite, lest the
moral diversity that comes from living in a pluralistic society be erased.
It is worth adding that conscience has had a variety of definitions and uses.
It would be too great a task to canvass these all here, and, moreover, the phenom-
enon referred to here as conscience is real, whatever one may wish to call it.
12
To argue for an alternative definition of conscience, therefore, would not do
away with the moral-psychological phenomenon of practical reason outlined
above, nor with its implications. The process described is necessary to the pursuit
of all morality worthy of the name. Without it, moral action would be fundamen-
tally irrational.
Conscience requires conscientious objection
If conscience informs acts it also informs omissions. If it guides towards the good –I
should do xfor this patient because it would benefit them –it also steers away from
the bad –I should not do ybecause it would be deleterious. This implies that con-
science guides positively and negatively. Conscience tells us that prescribing aperients
to a severely constipated patient is good, but that intentionally exacerbating consti-
pation is bad. It is when the negative requirements of conscience conflict with external
demands to the point of utter incompatibility that CO obtains. Any conscientious jud-
gement has the potential to generate CO, which is only actualized when external con-
ditions demand it. Hence, one cannot conscientiously object to situations wherein
there is no requirement or expectation to act in an unconscionable way.
13
There will be times when a certain degree of disagreement between doctor and
patient can be conscientiously tolerated; for example, if a patient requests a treat-
ment which is suboptimal but not overtly harmful. These cases differ from disagree-
ments leading to CO because they do not entail the performance of what the doctor
considers to be intentional harm.
14
For CO to arise, the negative requirements of
conscience and external demand or expectation must be irreconcilable i.e. when
the violation of ‘do no harm’is in view. Hence, the case of the obstetrician who
12
This somewhat technical definition of conscience and its relation to practical reason is associated with the
Aristotelian-Thomistic tradition.
13
One cannot conscientiously object to running over pedestrians with a car because no one places upon us an expec-
tation to do so.
14
Of course, it is accepted that competent patients have a legal right to refuse any treatment offered to them; this is not in
question (see Re B). The relevant case here is that of a patient making a positive request for a treatment which is not
harmful or reckless, but which might be considered ‘second-best’or suboptimal. The doctor facilitating this request is
not concerned about directly harming the patient, though he might believe he hasnot done as much good as he could have.
254 TONI C. SAAD
considers a foetus to be a bearer of the human right to life will consider a request for
an elective abortion to be irreconcilable to her conscience. Of note, this is not
because her conscience is fundamentally different from her colleagues’, but
because her conscience specifies to the unborn the basic principle of ‘do no harm’
which all her colleagues share. In a case of CO like this one, it is disagreement
over the morality of ends which leads to the irreconcilability of the proposed
action to the requirements of conscience do to good and avoid harm. Far more fre-
quently, however, conflict arises over the morality of means, and this sort of dis-
agreement can also escalate to CO.
Conscientious objection to ends
CO to ends is what most have in mind when talking about CO in general. It arises
when the requirements of conscience clash with external demands over the morality
of a given end. In healthcare, the most salient example is abortion. Usually, the con-
scientious objector to abortion believes that intentional killing is wrong per se; con-
science confirms this by applying the general moral principle about taking innocent
life to the case of unborn life and informs him to refrain from performing or willingly
assisting with abortion. This clearly makes the patient’s request irreconcilable to the
negative requirements of the doctor’s conscience, who must, therefore, conscientiously
object. Cases of conscience which involve the utter incompatibility of ends to external
demand are usually the only kind of CO discussed in the literature. A handful of
medical interventions are grouped under this category. The ‘usual suspects’here are
abortion and euthanasia, still others might include female genital mutilation and
medical assistance in capital punishment (in relevant jurisdictions), contraception
and sterilization. Each of these can reasonably be conceived as violating the principle
of ‘do no harm’. They require a course of action utterly incompatible with external
requirements which contradict them. In the case of abortion and euthanasia the prin-
ciple ‘it is wrong to deliberately kill the innocent’, will conflict irreconcilably with any
external expectation to act in a way which violates this general moral principle.
Female genital mutilation, contraception and sterilization, for the sake of argument,
would be forbidden by someone whose conscience is bound by a principle such as
‘it is wrong to deliberately mutilate or pervert a natural function of the body’.
Anyone holding to such a principle will find it unconscionable to perform female
genital mutilation, sterilization or prescribe contraception, as each of these things
involves actively harming or destroying a natural function of the body. The point is
not to defend these ethical principles –everyone knows they are controversial –but
to show that, in order to be consistent, if one holds to them, one is also bound to con-
scientiously object when external demands conflict with them.
15
15
Nevertheless, it seems that these two ethical principles are, at the very least, philosophically defensible, have been his-
torically defended with sophistication, and variously sanctioned according to philosophical fashion (see Jones 2018a,
2018b, Feser 2015, pp. 378–415). To argue that they are a priori unreasonable, and therefore invalid reasons to con-
scientiously object, would be an ambitious task. Regarding female genital mutilation, it may be that some practices
denoted by this phrase do not entail mutilation in the strict sense of harming a natural function of the body, while on
our account such a practice would still be considered harmful and, therefore, susceptible to conscientious objection,
although performing it would not violate the specific principle against mutilation. About male circumcision and the
question of mutilation see, for example, Jones (2018).
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 255
CO of this sort is not usually distinguished from another. Most of the literature on
CO considers only CO to ends, when there is a more common form which is prac-
ticed with minimal controversy.
Conscientious objection to means (clinical objection)
In cases where the requirements of conscience conflict with external demands, but
where the rightness of ends is not in question, there is still a possibility that CO
will obtain. In such cases, the cause of conflict is not the proposed end but the
means to the end. The moral acceptability of the goal is not in question; the issue
is how it is achieved. There are plenty of times when disagreement over means
does not require CO. However, there are other times when proposed means are so
grossly disproportionate or inappropriate that they make an act, which is morally
acceptable according to its end, immoral overall by reason of its means. When the
means to such an end present an agent with the expectation to do harm, CO will
obtain.
For example, a patient suffering from the common cold attends his general prac-
titioner’s surgery demanding antibiotic therapy. This doctor is not opposed to the
elimination of colds, nor does he believe antibiotics are intrinsically evil. Both he
and the patient agree that colds are bad. What is disputed, however, are the proposed
means of mitigating this cold which are ineffective at best. The doctor’s conscience
guides him to apply general principles of beneficence to this situation and informs
the judgment that it would be wrong to prescribe antibiotics. If a different treatment
had been demanded which posed no risk to the patient or others, the doctor may
have considered compromising. However, since antibiotics stand no chance of
treating a viral cold, and therefore expose the patient to potential side-effects
without a chance of benefit,
16
despite the patient’s firm belief that antibiotics will
help, he has conscientiously refused to give the patient what he believes will cause
harm –conscientiously objected to means.
17
An example where the stakes are higher are ‘ceiling of care’decisions. These are
decisions made by the medical team, when possible in conversation with the patient
and their relatives, about what interventions should or should not be attempted
based on their likelihood of benefiting and burdening the patient. Such decisions
are especially important in intensive care medicine where interventions may not
benefit all patients. For many, they would simply fail or only protract the dying
process and severely burden the patient in the process. Intensivists are, therefore,
selective of which patients they admit. So, even if a patient (or their relative or
doctor) were to demand full escalation to intensive care, the intensivist may,
16
This case not only involves a refusal to harm the patient but also a third party: the inappropriate use of antibiotics has
ramifications for other members of society who may contract bacterial illnesses which are resistant to antibiotic therapy.
17
Someone may object to this example for reason that it involves a factual error on the patient ’s part, because antibiotics
are not effective against the common cold. Therefore, this is not a case of a difference of ethics but a differ ence of facts, or
a question of belief. The problem with this objection is that patients sometimes request things which, while not in the
same category of inappropriateness as antibiotics for colds, are still inappropriate. High-risk surgery is an example of
this. A patient might have a problem which is ‘fixable’by the surgery they demand, and so they are not factually mis-
taken about their request. However, the surgeon, in view of the risk or the burden of the surgery, may genuinely believe
that it is not in a patient’s best interests to undergo the surgery. Though patients have a right to a second opinion, there is
no obligation upon the surgeon to perform this surgery under such circumstances.
256 TONI C. SAAD
depending on the patient’s clinical condition, nevertheless, decline admission.
18
The
(conscientious) intensivist’s decision is not based on his opposition to the continu-
ation of life, or procedures such as intubation and ventilation per se. The judgement
to decline to admit the patient is based on the appropriateness of the means to the
end. It is conscientious, based on the expectation that admitting such a patient to
intensive care would cause them more harm than good. In other words, the conscien-
tious refusal to inappropriately admit to intensive care turns on the principle of ‘do
no harm’.
CO to means often concerns medication. Steroids, for example, are drugs used to
treat a variety of conditions and can have significant therapeutic and symptomatic
benefit. Unfortunately, they have extensive potential side-effects such as the develop-
ment of diabetes and the suppression of the immune system. Although no doctor
would consider steroid therapy wrong per se, there is certainly a time when it
would be inappropriate –even dangerous –to prescribe them, even if the patient
were making a fully informed request. If the doctor in question considers that
steroids are so disproportionate that prescribing them would irreconcilably conflict
with the requirements of morality, they are justified in not prescribing.
19
It is gener-
ally accepted that a responsible prescriber does not give out medicines when the risk
of harm to the patient outweighs the benefit. Ultimately, this means that there is no
obligation to do harm.
Objections to means occur every day in healthcare. Patients or colleagues some-
times ask for that which, while not aiming at a morally questionable end, is inap-
propriate in various ways. This inappropriateness admits of degrees but sometimes
it is such that the proposed means conflict irreconcilably withthe requirements ofcon-
science. There is a time when the means to a permissible end are so disproportionate
that the whole action becomes wrong. This is why one often hears it said in hospital
that it would be wrong to attempt certain interventions, say cardiopulmonary resus-
citation, under some circumstances. This is moral language because morality is at
stake –specifically the imperative to avoid harming the patient. Some disagreement
about the means to an uncontroversial end will, if the proposed means cause harm,
be elevated to the status of CO when harm to the patient is in view.
This all shows how much of a part conscience’s negative role plays in healthcare.
While conscience’s role in guiding action is important, so is its role in informing
omission, and this is not based on superstitious belief or emotional intuition,
but the first principle of morality: do no harm. Each of the cases of CO to
means described above is such because the proposed means were disproportio-
nately harmful to the patient, even though the patient is consenting to or even
demanding the intervention. When a patient demands an intervention which is
positively harmful it seems that a doctor is under no obligation to perform it.
18
Decisions to not admit to intensive care are not usually contested. However, the well-known case of David James illus-
trates that the courts are sometimes called upon to resolve disputes concerning ceilings of care (Aintree University Hos-
pital NHS Foundation Trust v David James and Ors). The medical team looking after David James on the intensive care
unit sought an order from the Court of Protection to the effect that they would not be held liable for withholding car-
diopulmonary resuscitation, renal replacement therapy and invasive haemodynamic support, as they did not think these
things to be in his best interests. The request was rejected in early December 2012, but then later granted after James’
condition deteriorated (see Szawarski 2016).
19
Something similar could be said for opiates.
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 257
This consideration introduces our discussion about the similarity between CO to
ends and CO to means.
Conscientious objection and clinical objections are substantially
similar
Giubillini has argued there is a clear division between CO and clinical judgement: the
former is moral, while the latter is technical, and therefore only the latter should be
permitted (Giubilini 2014, p. 162). Surely, however, the examples of clinical objection
enumerated above disprove this claim. The conscientious decision not to admit a
patient to intensive care under certain circumstances is made in part on technical con-
siderations which merely serve to specify the general principles of beneficence and
non-maleficence. The moral and technical are distinguishable but inseparable
because every clinical judgement is one moral act. To suggest that clinical objections
are merely technical while CO to ends is merely moral is to fail to have noticed that
both conform to practical reason. A clinical judgement assumes that good should
be done to the patient; any technical considerations serve this ethical goal and are sec-
ondary to it. Hence, a clinical judgement cannot be purely technical. We may speak of
purely technical considerations when we are discussing, say, the efficacy of a drug in a
clinical trial, but as soon as we wish to make a clinical decision about prescribing the
drug to a given patient, we are in the realm of morality.
This reveals the fundamental similarity between CO to ends and CO to means.
When we compare CO with clinical objection, we notice that both obey the form of
practical reason, inasmuch as they both require the application of a general moral prin-
ciple to a given situation, to lead to a practical judgement about how one should act or
refrain from acting. They are also similar in terms of the judgement they yield. Whether
one objects to an act on grounds of ends or means, the conclusion is the same: this pro-
posed act is wrong and should not be performed.
Opponents of CO to the ‘usual suspects’may welcome the distinction between
CO to means and to ends, believing it can justify a policy which permits clinical
objection while forbidding CO. The problem, however, is that, as the examples
of CO to means detailed above show, when disagreements over means are elevated
to the level of CO, it is because they concern doing harm to the patient –amoral
consideration. This very elevation based on avoiding harm shows that CO to ends
and means collapse into one, because both, at root, are controlled by the ethical
principle of ‘do no harm’. Whether CO is to ends or means, it stands opposed
to the principle that ‘good is to be done, evil is to be avoided’, the first principle
of practical reason. If, therefore, CO to ends and means are substantially
similar, it seems that there can be no principled reason for allowing one and not
another.
No principled reason for ruling out conscientious objection
Based on the argument laid out above –that CO to ends and clinical objection are
substantially similar –it seems inconsistent that a policy would permit or forbid one
258 TONI C. SAAD
and not the other. If, say, it were decided that doctors may continue to exercise clini-
cal objection but may no longer object to the ‘usual suspects’(abortion, euthanasia
etc.) it must be asked: on what grounds may conscience be accommodated only
when means are concerned? Such a policy, perhaps not stated so bluntly, is, in the
wisdom of bureaucracy, possible, but it is inconsistent with ethical reality. To
imply that a healthcare professional may (indeed, must) use practical reason in all
their clinical work except when it concerns x,yor z,seemsarbitrary–pragmatic
and convenient as some count these things, perhaps, but arbitrary, nonetheless. It
might be that someone willing to vouch for such a policy does not grasp the funda-
mentally moral nature of healthcare and the necessity of conscience to every clinical
judgement. Alternatively, they may concede the role of conscience but consider
certain conscientious conclusions unacceptable. This seems to suggest that the
debate is actually about the ‘usual suspects’and not really about conscience and
that hostility towards CO is really hostility to certain views about the ‘usual suspects.’
Even so, such a policy remains inconsistent with the reality of conscience. It must be
concluded, therefore, that the argument presented here entails that there is no prin-
cipled reason for ruling out CO, and, so, naturally, this should not be done.
Considering objections
It seems that there are two major ways of repudiating the argument laid out in this
paper. The first is to reject the premise that medicine’s goals are at least somewhat
objective. One may argue that healthcare should be reconceived as being just
another technological means of preference satisfaction, whose ethic is not to do
good in any substantial sense, but in a merely formal sense of satisfying arbitrary
preferences. This would render the rest of the argument meaningless, as the
notion that one can do good by doing anything other than blindly obeying a
patient’s whim neutralizes conscience because it attempts to say that healthcare
aims at no good in particular. Of course, this would entail a duty to worsen pathol-
ogy and facilitate all manner of inappropriate and unsafe procedures. These con-
clusions will make this line of argument unacceptable to healthcare professionals
trained to think about health and harm in objective terms.
Alternatively, the opponent of CO may argue for a policy like the one mentioned
above, whereby CO to a handful of controversial ends is forbidden, while leaving
untouched CO to means. The problem with this position, apart from being incon-
sistent with the reality underpinning ethical decision-making, is that it makes it dif-
ficult to make sweeping claims against CO in general, and rather forces the
opponent of CO to show their hand: it is not CO per se which they oppose, but
rather CO to a handful of controversial procedures. By doing this, they must
argue that this handful of controversial procedures deserves special status in law
or policy to ensure that conscientious objectors are not allowed to interfere with
what they consider to be special acts. This makes it seem that hostility towards
CO is in fact hostility towards those who disagree with a handful of practices
which happen to be generally sanctioned by society. The notion that CO is permiss-
ible if it does not involve precisely the most controversial interventions performed
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 259
under the heading of healthcare seems a rather unsatisfactory proposal. Indeed, it is
the controversial nature of the ‘usual suspects’and what is at stake when they are in
question, that makes the possibility of CO particularly urgent. It seems perverse to
prevent objection to the very things shrouded in moral uncertainty, things towards
which even those who are willing to provide them are ambivalent (Lyus 2017).
20
Conclusion
Let us return to the original question: is healthcare a special case regarding CO?
No, because all that has been argued about the role of conscience in relation to
the pursuit of the good and the avoidance of harm and the role of practical
reason applies as much to politics, education, craftsmanship, journalism and agri-
culture. Yes, the stakes may not be as (obviously) high in other fields, and the
possibility of doing harm may not be as great. However, any difference
between healthcare and other spheres of life which involve the pursuit of a par-
ticular good (and is therefore subject to the same rules of morality) is only one
of degree.
Certainly, it is hard to see how one could make a principled defence of CO in
healthcare which would not also apply to, say, social care or education. If a social
worker were expected by their client or manager to do something which is legal
but, for reason of its end or circumstance, entails causing harm to a client or third
party, the social worker has the moral right to conscientiously object. Likewise, a
teacher should be permitted to conscientiously object to harming a child; for
example, by objecting to teaching ideologically-motivated falsehoods. These two
cases might strike us as unlikely, but they illustrate the point that because harm is
not merely medical then neither is CO a merely medical enterprise. Perhaps expec-
tation to do what could reasonably be considered harmful does not yet present itself
to teachers and social workers, but it is impossible to say that this will never be the
case. The high stakes and more clearly controversial possibilities of healthcare in no
way imply that the rest of society operates at the level of the purely technical and
mundane. All are subject to the same rules of morality, and all pursuit of the good
is subject to the requirements of practical reason and conscience’s apprehension
and application of practical reason to one’s given sphere, regardless of whether
one’s potential to harm is great or small. Whether one is a doctor, a teacher, a
butcher, baker or candlestick-maker, one should not be forced to do something
which one considers harmful to another. CO, therefore, is the right to refuse to harm.
Disclosure statement
No potential conflict of interest was reported by the author.
20
One could perhaps concede that CO to ends and means should be treated similarly. Then, might one not just as well
forbid as allow both if they are substantially similar? Quite simply, this is an invalid conclusion to draw from the pre-
mises. If healthcare aims at doing good and doing good requires conscience, the conclusion that conscience should not be
permitted either in regard to ends or means cannot stand. To maintain this conclusion, it seems that one must also adopt
the position that healthcare really is reducible to preference satisfaction. This position at least has the advantage of being
valid, though it remains to be seen whether it is sound.
260 TONI C. SAAD
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Notes on contributor
Toni C. Saad is a foundation year 2 doctor based in Cardiff. He is editor of book
reviews for The New Bioethics.
Correspondence to: Toni C. Saad. Email: ToniSaad@doctors.org.uk
CONSCIENTIOUS OBJECTION AND CLINICAL JUDGEMENT 261
