Corps de l’article

In a number of jurisdictions in Europe and in North America, and particularly in Canada, the introduction and expansion of the conditions under which a patient may request euthanasia or assisted suicide – what is called, in Canada, ‘medical assistance in dying’ (MAiD) – has led to an increased concern about whether a physician may ethically refuse to perform such procedures – or, indeed, any legal medical procedure that lies within her practice. Some have argued that the obligation of physicians to provide patient care requires those who have the requisite medical competencies to provide procedures such as MAiD or, if they decline to do so as a matter of conscience, provide effective referrals to physicians who will.[1] Some, however, have gone further, to argue that all physicians who have been trained in the procedures or have this competency within their practice, should be willing and ready to provide it, and that refusals to do so based on conscience cannot apply.[2]

In this paper, I argue that a physician may, sometimes, ethically refuse to perform a legal medical procedure that lies within her practice. To do this, I begin by clarifying some key terms: ‘acting on conscience’ (sometimes called conscientious objection), health, medicine, and ‘the duty of the physician.’ I then present some arguments to show that a physician is bound to provide medical care only if, in her judgement, it meets the aim of medicine, namely treatment of disease and promoting patient health.[3] Next, I consider some objections to this claim, and, finally, show why these objections fail.

I. Clarification of terms

First, then, and before looking at arguments for ethical refusal to perform certain medical procedures, some terms need clarification.

To begin with, we need to give some thought to what “the aim(s)” of a physician – i.e., of a ‘practitioner of medicine’ – might be. A brief survey of major medical dictionaries indicates that ‘medicine’ is “the art and science of the diagnosis and treatment of disease and the maintenance of health,”[4] “The art and science of maintaining health; recognising, understanding, preventing, diagnosing, alleviating, managing and treating diseases, injuries, disorders and deformities in all their relations that affect the human body in general,”[5] and the “active maintenance of health and the prevention and treatment of disease and illness.”[6] Since medical dictionaries reflect at least a consensus, is not a normative view in the field, it is reasonable to say that the aim of medicine, therefore, is health.[7]

What, then, is ‘health’? According to the World Health Organization, health is “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity,”[8] and, more broadly, “the extent to which an individual or group is able to realize aspirations and satisfy needs, and to change or cope with the environment.”[9]

From the preceding brief descriptions, then, since the aim of medicine is health, the aim and the duty of a physician is to promote and maintain health – i.e., physical, mental, and social well-being through, for example, the management and treatment of illness and disease.

Finally, what is it to ‘act on conscience’? Conscience has been understood in different ways, particularly in ethics, but one sense that is generally relevant to medicine – and, again, is recognized in medical literature – is that it is “the moral, self-critical sense of what is right and wrong”[10] and “the exercise and expression of a reflective sense of integrity, constitutive of reflection about the relationship between a specific course of action and a particular idea of the self and one’s integrity.”[11] I would re-express this slightly, as follows: that conscience is ‘a judgement or an intellectual process of careful deliberation to determine what should be done or avoided in a concrete situation, involving objective practical principles known in us, as well as having a good will, practical experience, and as much relevant information as possible.’ (While the term ‘conscience’ may also sometimes be understood as ‘feeling deeply’ or a ‘personal moral code’ or a subjective intuition, these would all be versions of moral subjectivism, and so have little normative role in ethics.) An act of conscience, then, is to act on that judgement. Conscience has long been regarded as a fundamental freedom and basic right, and has been explicitly recognised in many declarations and bills of rights.[12] ‘Conscientious objection,’ therefore, would be to object to or refrain from following a particular rule or acting in a certain way, based on a judgment of one’s conscience.

Given this brief description of key terms, let us turn to the arguments, and begin to see why one might argue that a physician should be able, ethically, sometimes to refuse to perform a legal medical procedure that lies within her practice: because some medical procedures may not have health as their aim; because the judgment of what is appropriate treatment is a professional, medical judgment of the individual physician concerned; and particularly because physicians are enjoined to have this ‘moral, self-critical sense of what is right and wrong’ as part of their practice, and so must be allowed to exercise it. Physician conscience is part of practicing medicine ethically and, moreover and more profoundly, is an instance of the integrity and dignity of all human beings. I begin, then, by looking briefly at a recent article on physician conscience and, subsequently, build on it to develop further arguments for the ethical legitimacy of physician conscience.

II. Arguments

One argument for recognizing the role of conscience and ‘conscientious objection’ in medicine is that, as Christopher Cowley argues in a recent article[13], “there is a link between conscientious objection and the ideals of medicine that deserve respect”[14] – and, Cowley adds, that critics “err in seeing conscientious objection as no more than a self-serving non-moral aversion.”[15] Cowley writes that the practice of medicine is not just a job or a service, and that the decision to seek to become a physician is often not just a choice or preference of one job among many possibilities. It is a vocation or calling wherein one has a deep conviction that one ought to care for and help others by doing what one can to treat disease and to promote and maintain health.[16] Moreover, being a physician is not a normal ‘9 to 5’ job where one ‘clocks in and out.’ It involves more than fulfilling a contract for which one receives remuneration and promotion, and it has additional responsibilities. Cowley points out,

some doctors (…) see their job as the restoration of health, as far as possible. [For example, when it comes to Physician Assisted Suicide,] [t]hey may reluctantly admit that the autonomous patient has a moral right to commit suicide (…). But as doctors, they will say that assisting such a suicide contravenes the ideal of medicine – an otherwise eminently plausible ideal – with which they identify.[17]

So, given their understanding of medicine and the ideals of the practice of medicine, and “out of respect for their concept of medicine” as the restitution of health, Cowley concludes that the conscience and views of these doctors “deserve accommodation,”[18] i.e., they should be allowed ultimately to determine how they will practice medicine, and, as the case may be, refuse to perform certain medical procedures.

Cowley also seems to offer a second argument – though he does not explicitly separate it from the preceding – that the recognition that “medicine is not a normal job”[19] brings with it a recognition of the importance of physician judgement – that the “well-established principles of clinical judgement and discretion” leave it “for the doctor to decide”[20] what is the most appropriate treatment. For example, when it comes to Physician Assisted Suicide (PAS), Cowley writes, it is up to the physician “whether PAS is or is not the most appropriate ‘treatment’ (…). Under the principle of medical discretion, therefore, the doctor can refuse to provide the PAS, and instead offer different treatments,”[21] such as palliative care and, if requested, palliative sedation.

Cowley acknowledges that some individuals may claim that they have a right to treatment, however he rejects this. He writes that people have a right to attention, but that it is up to the physician alone to determine the treatment. This is, to my mind, an important distinction. For example, suppose that I have congestive heart failure and I ask my physician for a heart transplant. I have, presumably, a right to be given attention – getting an appointment with her, discussing my condition, and so on. If, after examination, my physician determines that a transplant is the appropriate treatment or course of action, I may be put on the waiting list, etc. But if my physician judges that it is not the appropriate treatment, or at least not at this time, then she is not violating any so-called right to treatment, and she is under no obligation to put me on the transplant list.

Cowley concludes, then, that given the distinctive if not unique character of the ‘vocation’ of the physician, and given that medical judgement about treatment is part of the practice of medicine, physician conscience should be respected – specifically, that there is an “option of conscientious objection in medicine.”[22]

It is, however, not all that clear that the need for allowing the exercise of physician judgement is sufficient for ‘conscientious objection.’ There need to be, then, other and stronger arguments to support physician conscience.

First, I would go further than Cowley about the issue of accommodating a physician’s understanding of ‘the nature of medicine.’ It is not just because some physicians “understand” the aim of medicine as “the promotion of health” that their view merits respect. This is too subjective. It is that the nature of medicine itself traditionally has been (and is in documents such as ethics codes, statements from the World Health Organization, and so on) ‘aiming at health and the treatment of disease.’ It is not just that we should ‘tolerate’ a personal conception of medicine coming from some individuals who feel called to a particular profession; it is what medicine traditionally has aimed at, and is still generally regarded as aiming at. Thus, the physician who acts on her conscience and declines to perform a “medical” procedure may be doing so because it is simply not part of medicine to do so, not just because it is not part of how she “understands” medicine.

A second argument can be drawn from the importance of recognizing the physician as a moral agent. It is by no means a new argument that all individuals have a right, and perhaps even an obligation, to act in ways that enable their development as moral agents and to develop basic virtues,[23] and this is also something that is recognized in codes of ethics and professionalism such as that of the Canadian Medical Association.[24] For individuals to have the opportunity to develop that agency, they must be authors of their own moral action. Thus, the profession of medicine must respect the physician as a moral agent, particularly within their sphere of practice.

A third – and, on my view, the principal – argument for the ethical relevance of physician conscience focuses on the activity of a physician. Now, it is important to distinguish between the ‘profession’ of medicine and the ‘practice’ of medicine. For most of human history, the practice of medicine has not been licensed. While there was, for example, in many places in ‘the Western world,’ a code or oath (such as the Hippocratic Oath) that, in a sense, governed medicine, there was no licensing and enforcement mechanism until about the 16th century,[25] and even then not systematically. One can, and perhaps should, talk of ‘the practice of medicine’ as distinct from ‘the medical profession’ (i.e., being licensed).

What is it to ‘practice medicine’? It is not just a matter of being able to engage in certain activities that promote health and treat diseases. It is to engage in “the art and science of medicine,”[26] and this means in light of certain values, principles, and virtues.[27] These values are recognized explicitly in medical codes of ethics, such as the Canadian Medical Association Code of Ethics and Professionalism.[28] These values, which govern and should influence medical practice, include “the wellbeing of the patient”; to “prevent or minimize harm”; “dignity” and “respect [for] the equal and intrinsic worth of all persons”; the “autonomy of the patient”; “integrity”; “personal health and wellness”; ensuring “meaningful co-existence of professional and personal life”; and “physician health and wellness.” Thus, physicians are instructed to: “Act according to your conscience”; “cultivate (…) physical and psychological safety”; “communicate information accurately and honestly”; show “civility”; “never participate in or condone (…) any form of cruel, inhuman, or degrading procedure”; support patient empowerment; and fulfill a “duty of confidentiality,” “of loyalty,” and of “non-abandonment [of] the patient.”[29]

To be a physician, then, is not simply being able to perform certain kinds of medical services and interventions, as a mechanic would “service” an automobile. It is to perform these services within a broader context of values, principles, and virtues, and to show professional and personal integrity, in a way that respects one’s dignity.

This notion of ‘integrity’ is key to the practice of medicine and, more broadly, to acting ethically in general. Integrity is not, pace Cowley, ‘a desire not to “feel guilty.”’[30] This is to trivialize integrity. One definition of integrity, found in the Code of Ethics for Registered Nurses (Canada), is: “adherence to moral norms that is sustained over time. Implicit in integrity is soundness, trustworthiness and the consistency of convictions, actions and emotions.”[31] This emphasis in integrity on “consistency” is not just that one is expected to act consistently in one’s professional work, but that one acts in a way that is consistent with or coherent with other values – such as the dignity of the patient and of the physician. For integrity means “the state of being whole, entire, or undiminished.”[32]

Integrity is essential to the practice of medicine, and is recognized, for example, in the codes of ethics of various medical and health care professionals.[33] Yet this is not just integrity in ‘professional’ activity, independent of the rest of one’s moral life. While many values in the CMA Code focus on responsibilities to others, integrity emphasizes a responsibility to oneself and to others; all of us, including physicians, are ethically required to seek to be people who are ‘whole.’ It is difficult to conceive how there can be a genuine integrity where one’s professional values are different from one’s personal values. Forcing one to separate the values of one’s profession from a ‘personal’ endorsement and commitment to them is not acknowledging or respecting that person’s integrity.

Integrity, then, is or seeks a wholeness or consistency in oneself. Integrity requires being the author of one’s moral conduct (i.e., autonomy), acting in a way that is consistent with one’s obligations and moral values, and being ready to take responsibility – and, in doing so, standing up for one’s values and, ideally, exhibiting and articulating how one acts on one’s obligations. This may involve acting courageously, ‘setting a standard,’ and supporting others.

A person of integrity, then, is not simply one who has certain opinions or personal preferences, but who must determine and articulate for oneself these principles and values – i.e., what Charles Taylor calls one’s ‘core convictions,’ those convictions around which one centres one’s life and which are important or central to the meaning of one’s life – and to act on these convictions.[34] In other words, one must have an opportunity to form, and act on, one’s conscience. Having the ability to form one’s conscience is essential to integrity.[35]

Integrity and conscience, then, are not matters of merely making choices, but of who a person is. A violation of one’s wholeness, one’s integrity – so that a person is ‘just follows orders’ and takes the line of least resistance – is forcing one to surrender one’s ‘authorship’ of moral conduct.

The importance of integrity and conscience is supported by the most recently revised codes of medicine and professionalism. While codes by themselves are not, of course, absolute, they are an indication of where the profession of medicine stands – and the CMA Code, for example, insists that a physician show integrity, act according to one’s conscience, and ensure the meaningful co-existence of professional and personal life. It does not, moreover, say that society can force a physician to act against what medicine aims at, or even against the understanding of many physicians of what medicine aims at. Thus, out of respect for a person’s integrity, one should seek to accommodate, and even celebrate, a physician’s integrity.

The value of the dignity of the physician is also relevant here. To oblige one to act against or in violation of one’s conscience and one’s medical judgment, is not just to undermine one’s status as a moral agent. It is to treat the person as an object. At the core of dignity is the notion that one is not to be used merely as a means, merely as a thing, but always as an end in oneself. To not recognize the conscience of a person, and to require her to act without reference to, or against her conscience, is a violation of her dignity. Recognizing physician conscience is part of recognizing a person’s dignity.[36]

III. Objections

A number of authors have challenged this view, insisting that there should be no ‘conscientious objection’ in medicine.[37] Julian Savulescu, for example, writes that “When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors’ conscience has little place in the delivery of modern medical care.”[38] He concludes that “Doctors who compromise the delivery of medical services to patients on conscience grounds must be punished through removal of licence to practise and other legal mechanisms”[39] and, further, that “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.”[40]

What arguments can one offer for this view? I want to look at four arguments – four arguments mentioned, directly or indirectly, by Savulescu, but also repeated in various forms by others[41]: that conscientious objection in medicine is unjust, inconsistent, violates a physician’s ‘commitments,’ and goes against what physicians are supposed to do. The argumentation provided by Savulescu, however, is sometimes unclear, and requires some unpacking.

First, Savulescu says that conscientious objection “introduces inequity and inefficiency.” It is inefficient because, he claims, a physician who refuses to provide a medical service that is “legal, beneficial, desired by the patient, and a part of a just healthcare system”[42] obliges those requesting that service to “shop among doctors to receive [that] service to which they are entitled.” This, Savulescu writes, wastes resources and, thereby, is inefficient. It is also inequitable, he writes. Since some patients will not ‘shop’ around, and may not know that they can shop around, he concludes that they are being treated inequitably.[43]

Such an argument is opaque and question-begging. Not only are inefficiency and inequity vague concepts here – inequity suggests treating people differently for arbitrary reasons, and there is no support for this in Savulescu’s example – but it is not clear that ‘efficiency,’ for example, is always a relevant or a positive value. At the very least, the moral weight of efficiency or inefficiency depends on another principle. For some, it may be more efficient to put suffering people to death than to treat them, but it is far from obvious that this ‘efficiency’ is ethical. Similarly, the fact that some patients may seek to consult another physician while others do not, does not entail that those who do not have been treated inequitably. Further, even if it can be established that the majority in a society is indifferent or opposed to certain acts of conscience, it does not follow that ‘minority rights’ or the reasonable claims of the few do not trump the views of the majority. Sometimes, one is ethically obliged to defend values such as the dignity and integrity of minorities. Indeed, Savulescu himself later concedes as much. For he writes that, “When a doctor’s values can be accommodated without compromising the quality and efficiency of public medicine they should, of course, be accommodated.”[44] That he writes that conscientious objection in such a context “should, of course” be accommodated is striking. This suggests that some (minimal) ‘shopping around’ and some (minimally inconvenient putative) ‘inequity’ are ethically allowable even on his own terms.

Second, Savulescu says that conscientious objection is inconsistent. He suggests that it leads to cases where a physician simply prefers personal values and self-interest over the values of, and obligations to, the practice of medicine. Yet the illustrations that Savulescu gives do not show that there is an inconsistency between what a physician is (according to medical standards or medical practice) supposed to do – e.g., ‘provide care’ – and what conscientious objection putatively allows her to do, sc., not ‘provide care.’ Nor do they show that a physician cannot – according to longstanding medical practice – appeal to ‘self interest and self preservation’ in refusing to treat a patient, and that conscientious objection is precisely that – simply a matter of self interest and self preservation.[45] The putative inconsistency is, rather, that to act on one’s conscience is ‘inconsistent’ with the fact that “society has deemed patients are entitled to treatment”[46] that the physician refuses to provide. This is ‘inconsistent,’ however, only if medicine is defined as ‘providing all those services to patients of which that society approves’ – and this is implausible for the reasons outlined at the beginning of this paper.

A third objection to physician conscience is that appealing to conscientious objection violates a physician’s professional commitments; Savulescu writes that “To be a doctor is to be willing and able to offer appropriate medical interventions that are legal, beneficial, desired by the patient, and a part of a just healthcare system”[47] – that if one is a physician, then one must provide such services. So, Savulescu suggests, refraining from providing a certain legal service, one is acting against the commitments that are part of being a physician.

I have argued against this objection earlier in this paper. There is, I pointed out, more to being a physician than being one who performs “medical interventions.” There are values, including obligations to oneself, that one must respect, and these obviously bear on the when and how and to whom a treatment is offered. Moreover, even if one has an obligation to provide certain “appropriate medical interventions,” who determines the appropriateness of the intervention? Normally, it is the attending physician herself; this is the issue of (autonomous) physician discretion and judgement, referred to earlier. Indeed, this is not ‘conscientious objection’; it is professional medical judgement.

There is, however, one further important objection, which Savulescu only hints at, but which underlies his ultimate argument. His view seems to be that to be a physician is, fundamentally, to be a public servant. He would say – and indeed some opponents of conscientious objection would argue – that a physician is providing a public service and that “public servants must act in the public interest not their own.”[48] Now, this claim is ambiguous. In one respect, the term ‘public servant’ means ‘one who serves the public, i.e., who serves others in the community,’ which a physician obviously does. But, in another respect, it means one who has a place in the public service; this is particularly the case in a healthcare system that is (entirely?) publicly funded. It seems that Savulescu sees the physician in this latter, and not primarily in the former sense. Thus, he concludes that, since the job of a physician (as noted above) is to provide a ‘legal, beneficial, desired’ service, to refuse to do so is to refuse to do what an employee is supposed to do – i.e., do what they were hired to do – and, this refusal, Savulescu claims, is not justifiable.

Here, Savulescu, intentionally or not, misses a key point: i.e., that the physician serves the public by being a physician and carrying out the duty of a physician, and not primarily by being a ‘civil servant.’ It is true that the physician, in a publicly funded health care system, has the obligations of an employee, but it is as a physician. How one works as a physician is not ‘in one’s own interest,’ but is dependent on what it is to be a physician – and on the aim of medicine. Many physicians who work in a publicly-funded system, may be employees, de iure or de facto. But Savulescu conflates ‘physician’ with ‘an employee trained in medicine working in a state-funded health-care system.’ To illustrate this point, consider the following example. Suppose that you are a trained biology professor looking for employment, that there is no significant need of biology professors, but that those biology departments that are hiring professors hold that certain races or certain genders are inferior to others. You accept a position. What is your duty as a biology professor? Is it to teach biology, or to teach the racist and sexist version of biology preferred by your fellow biology professors? Presumably your duty as a biologist and as a biology professor is to teach what biology is, not racist or sexist views. Similarly, just as a biology professor should not be forced to teach a particular ideological view, so a physician should not be forced to provide services that she judges are inappropriate or wrong. The function or service of a physician is to be a physician, not to be a mere employee or public servant.[49]


If we are attentive to what terms, such as ‘medicine’ and ‘health,’ mean, what it is to speak of ‘practicing medicine,’ what it means to ‘act on conscience,’ and what ‘the aim’ and ‘the duty of the physician’ are, it seems clear that a physician may, at least sometimes, ethically refuse to perform a legal medical procedure that lies within her practice. I have argued, as Cowley appears to argue, that a physician is bound to provide medical care only if, in her judgement or understanding, it meets the aim of medicine, namely treatment of disease and promotion of patient health. I have also argued, however, that, regardless of one’s “understanding” of the aims of medicine, if it is inconsistent with what ‘medicine’ means, or if it violates a physician’s moral agency, or if it undermines a physician’s professional judgment, or her integrity, or her dignity, she may ethically refuse to consent to performing such procedures. Some objections to this conclusion seem to focus on claims that refusing to perform presumably all legal procedures within one’s competences, is unjust, is inconsistent, violates physician commitments, and is incompatible with the role of a physician as a ‘public servant.’ These objections, I have argued, are either too vague, fail to recognise the proper place of autonomous medical judgement, or misunderstand the role of a physician as a physician. It is clear, then, that a physician may sometimes – such as in the case of MAiD – ethically refuse to perform a legal medical procedure that lies within her practice.[50]