Catholic Medical Quarterly Volume 65(4) November 2015
Conscience and Euthanasia
Conscience in Medicine: Lessons from the Glasgow Midwives case.
John Duddington, LL.M., Barrister.
Editor of Law and Justice, the
Christian Law Review.
The Glasgow Midwives Case
The outcome of what seems to be generally known as the Glasgow Midwives case, more correctly Greater Glasgow Health Board v Doogan and another (2014), has left many of us feeling downcast. Once again Catholics and indeed others in healthcare professions have, it seems, been discriminated against in the practice of their profession. But what is the real position and how can we chart a way forward? This article aims both to show the pitfalls to avoid and to highlight a better way which may, in time, result in significantly greater protection for Catholic health care professionals faced with demands from their employers which conflict with their faith.
The facts of this case are by now well-known but briefly the issue was the extent of section 4 of the Abortion Act 1967 which provides that: ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection’.
Mary Doogan and Concepta Wood had registered their conscientious objection under section 4 and so they were not required to actually participate in the treatment of patients having an abortion. However, they sought confirmation that they would not be required to supervise other staff in the participation and provision of care to patients undergoing termination of pregnancy. This was refused.
The Supreme Court gave a very narrow interpretation to the crucial word ‘participate’. Lady Hale, in the leading judgement, held that it did not cover what she termed ‘the host of ancillary, administrative and managerial tasks’ that might be associated with an abortion service. This decision was in line with previous case law as in the well-known case of Janaway v Salford Health Authority (1988) where the term ‘participate’ did not include a medical receptionist at a Health Centre who refused to type letters of referral from general practitioners to specialists with a view to termination of a woman’s pregnancy. This interpretation of the term ‘participate’ is significant in other areas too. For example clause 5 of the Assisted Dying Bill (2013), which sought to legalise euthanasia in some cases, also used the word ‘participating’ when it gave a right of conscientious objection to ‘participating in anything authorised by this Act to which that person has a conscientious objection’. Although this Bill was lost at the 2015 General Election it will certainly be re-introduced and then Catholics and others opposed to euthanasia will face another challenge.
What are the lessons to be learnt?
Firstly, that any attempts to widen the scope of the conscience clause in the Abortion Act 1967 are doomed to failure and as such are a waste of time. The Supreme Court has stated the position clearly and that is that.
Secondly, we cannot rely on help from the professional medical bodies in attempts to widen the scope of the conscience clause. In fact the professional bodies of healthcare professionals who are faced with issues of conscience have a lamentable record of failing to offer support. The Royal College of Midwives, far from supporting Mary Doogan and Concepta Wood, joined forces with the British Pregnancy Advisory Service in arguing before the Supreme Court that: ‘to give a board scope to the right of conscientious objection will put at risk the provision of a safe and accessible abortion service available to all pregnant women who need and want it.’
Thirdly, the courts balance the extent of the conscience clause against the perceived need to have an abortion service. As Lady Hale observed in the Supreme Court: ‘The conscience clause was the quid pro quo for a law designed to enable the health care profession to offer a lawful, safe and accessible service to women who would previously have had to go elsewhere.’ Not only this but there is undoubtedly an intellectual climate that favours abortion and here we must, by careful and reasoned arguments, seek to turn the tide. However, we are woefully short of support. In the Glasgow midwives case the only support that I noticed they received from a public figure was from Tom Clarke, the former Labour MP for Coatbridge, Chryston and Bellshill who supported them throughout the case and said that he intended to ‘fight as hard as he can’ for better legal protections for freedom of conscience. This is admirable but where were the others? Did I miss them?
A Possible Way Forward
What then is the answer?
Lady Hale has pointed out the way forward in her judgement in this case when she mentioned that the midwives had other possible claims under the European Convention of Human Rights (ECHR) and the Equality Act 2010. The Equality Act 2010 prohibits discrimination on the grounds of religion and belief and Article 9 of the ECHR guarantees freedom of thought, conscience and religion.
The reason why these are relevant is that Lady Hale advised the Glasgow midwives who failed to invoke the protection of s. 4 of the Abortion Act that they ‘may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs’. The precedent is that, as is well known, there is a duty under the Equality Act to make reasonable accommodation for those who have a disability and the argument is that there should be similar provision for religious beliefs.
Lady Hale, whose views carry some significance as she is the Vice President of the Supreme Court, pursued this theme in a lecture where she asked: ‘would it not be a great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others?’ Here then is a door opening for Christians. If we are prepared to put our case reasonably, and avoid the doctrinaire shouting that has unfortunately characterised too many Christian interventions in this area, then we may make progress.
What does reasonable accommodation mean?
In fact the concept of reasonable accommodation of religious belief does exist in Canada under the Canadian Charter of Rights and Freedoms (1982) and the Canadian Human Rights Act (1985). It is for the employer to justify the discriminatory measure and the question is whether it is impossible to accommodate individual employees without undue hardship on the part of the employer. Factors to be taken into account in assessing ‘undue hardship’ include financial cost, any disruption of a collective agreement, morale problems for other employees, the inter-changeability of workforce and facilities, the size of the employer, and safety considerations. This test sets a high standard for the employer but, if society feels that religious belief is a value worthy of protection, then I suggest that it is an appropriate one.
A Practical Example
Let us see how this would work in the area of healthcare.
Take the case of abortion again. Suppose that you are a Catholic in the position of Mrs. Janaway and are a secretary/receptionist at a Health Centre who is asked to type a letter referring a pregnant patient for an appointment with a consultant with a view to him forming an opinion whether the pregnancy should be terminated under the Abortion Act. You refuse and are told that the conscience clause in the Act does not protect you. You then claim that there has been a failure to give reasonable accommodation to your religious beliefs. Assuming that the Canadian model is adopted then there will be two issues:
First, is your opposition to abortion a religious belief? I think that, for Catholics, this is unarguable and our position is strengthened by the fact that the courts seem to be moving away from the need to identify what is and what is not a ‘core component’ of an infringed religious practice.
Secondly, can your employer show that it is impossible to accommodate your religious belief that abortion is wrong without undue hardship on their part? Here we will be in the area of practicalities. For example, if there is no one else to type the letter as you are the sole medical receptionist in the practice then the employer might well win but if there are others then there would be a good case to accommodate your religious beliefs. What is clear is that your case will be arguable when at the moment it is not.
Not only has this but with the result of the General Election coming through as I write this, a new opportunity opens up. The Conservatives promised that, if returned to power, they would replace the ECHR with what they call a ‘British Bill of rights’. The idea seems to be to continue with most of the human rights provisions in the ECHR but with modifications to deal with areas that have caused disquiet, for example, the alleged misuse of the ECHR to prevent deportation of foreign criminals. Whatever one thinks of this, and I confess to having misgivings, it will mean that human rights law in the UK will be redrawn and this will give us a fresh chance to argue for a greater protection of religious belief.
Thus there is a tide flowing towards us, slowly perhaps, but driven by influential voices. We must make sure that we catch it.
 In a lecture entitled ‘Religion and Sexual Orientation’ delivered at Yale Law School on 7 March 2014 and available on the website of the Supreme Court at http://supremecourt.uk/news/speeches.html.