Conscientious Objection (Medical Activities) Bill [HL]

Baroness O'Loan Excerpts

2nd reading (Hansard): House of Lords
Friday 26th January 2018 Lords Chamber

Moved by

[Baroness O’Loan]

That the Bill be now read a second time.

[Baroness O’Loan (CB)]

My Lords, I beg to move that this Bill be now read a second time.

This Bill is designed to afford protection to those in healthcare who object on grounds of conscience to being asked to participate in end-of-life treatment. It is about a human right: the right to freedom of belief, religion and conscience. There have always been those who, when faced with a call to participate or engage in end-of-life treatment, object to so doing. Conscientious objection was first provided for in the United Kingdom in 1757.

If we think back, 100 years ago on this day, our country and the world were at war, but even at that most parlous time 16,000 men were excused from conscription to military service on grounds of conscience. Some, such as Quakers, did so because of their religious beliefs. Others, such as radical socialists, did so out of political principle.

During World War II, we accommodated 60,000 registered conscientious objectors. That was not easy for them—maybe some would say it was not easy for others who fought. It was not simple but it was possible to accommodate conscientious objection. The United Kingdom, therefore, has a long and proud record of recognition of rights of conscience and respect for conscience. It is a principle recognised in international law as well as in our domestic legislation. In 2011, the European Court of Human Rights interpreted the Article 9 right to “freedom … to manifest … belief” to include conscientious objection and overturned the conviction of an Armenian Jehovah’s Witness for his refusal to perform military service at a time when there was no other option available to him.

As respect for conscience applies to those who refuse to participate in the taking of life in war, so it has been applied to those who refuse to be involved in what they see as the taking of life through healthcare practice. In 1967, when the UK legislated to decriminalise abortion in certain circumstances, provision was made for conscientious objection because it was understood that what was being made legal was regarded by some as the taking of life. Were it not so, there would have been no need for protection of conscience. In 1990, when the Human Fertilisation and Embryology Act was passed, there was again limited provision for conscientious objection, and in every instance in which your Lordships’ House has discussed assisted dying there has been provision for conscientious objection. Where conscientious objection is permitted, it is not absolute. Medical practitioners must assist to save life or to prevent grave or permanent injury. It is a complex field. Some have statutory rights. Some, like GPs, have contractual rights not to engage, but it is a contractual right, not a statutory right, and some have no rights at all.

Why does it matter anyway? Professor Dan Brock, a leading bioethicist at Harvard, describes conscience as the basis of an individual’s moral integrity, saying that it defines who, at least morally speaking, the person is. Maintaining moral integrity, he asserts, requires that a person does not violate their moral commitments. That is why we allow conscientious objection in healthcare so that people can maintain their moral integrity, without which major health and other problems will almost inevitably emerge. Through conscience, each of us decides whether an action is right or not. As Dr Sara Fovargue and Dr Mary Neal state, conscience is fundamental to moral agency and a proper feature of all areas of human endeavour, including professional practice. The provision of medical services, of course, is never value-free. Healthcare practitioners make moral judgments all day, every day, and these are often very difficult judgments.

In 2010, when the Equality Act was passed, freedom of religion or belief was accorded protected characteristic status, like sex, age and disability. Protection from discrimination and exclusion, on grounds of religion or belief is provided for in Section 10 of that Act, which defines religion and belief as,

“any religious or philosophical belief and a reference to belief includes a … lack of belief”.

Conscience is not the preserve of the religious. Those who think that it is wrong to end human life do so for many reasons: scientific, philosophical, religious and other beliefs. The right to conscientious objection exists as a protection for medical professionals from the moral injury of being involved in actions that they believe destroy life. It exists, too, for the protection of patients who can believe that the professionals looking after them can act in accord with their conscience. Conscientious objection operates at the margin of medical treatment, where the duty to do no harm moves to accommodate positive action to end life.

It is not just domestic law that recognises the right of conscientious objection. The Council of Europe’s Parliamentary Assembly adopted Resolution 1763 affirming the right of conscientious objection for medical professionals. This resolution states:

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion”.


It is non-binding but it reaffirms the normative understanding of freedom of conscience.

Society has changed, and the law has been interpreted differently in the United Kingdom. In 2014, the case of Greater Glasgow Health Board v Doogan and Another was heard by the Supreme Court. In this case, two senior midwives conscientiously objected to having to delegate tasks to, supervise or support those directly involved in abortion. They had been able to assert this right of conscientious objection for their whole nursing careers—which started very shortly after the Act was passed—until an amalgamation of hospitals led to their being required to do this work. Ultimately they could not, in conscience, have any role in the provision of abortion. Those skilled, compassionate, experienced midwives were unable to continue to serve as midwives, doing what they had done all their professional lives: helping women through the sometimes difficult process of carrying and bearing a child. I know that is difficult; anybody who has carried a child knows the sensitivities attached to it. Those good women were lost to the profession because the Supreme Court decided that indirect roles taken by nurses and midwives were excluded from protection under Section 4 of the Abortion Act.

It cannot be consistent with conscience to say, “I cannot do this, but I will order you to do it”. If one delegates, supervises or supports an activity, one is not unreasonable in concluding that one shares moral responsibility for what happens.

There is a lot of evidence that medical professionals are suffering serious disadvantage and discrimination for their beliefs. A 2016 ad hoc cross-party inquiry specifically into freedom of conscience in abortion provision received many accounts from medical professionals who had experienced discrimination in their work life due to their beliefs. I have heard so many stories of young doctors and nurses contemplating their future who have decided that although they would dearly love to be involved in obstetrics and gynaecology, and even though they are energised and feel vocationally called to the medicine of helping women through conception and childbirth, they nevertheless cannot do it because they could not, in conscience, kill an unborn child.

That is why I have introduced the Bill. Its provisions seek to affirm as a matter of statute that no one shall be under any duty to participate in activities they believe involve the taking of human life, either in the withdrawal of life-sustaining treatment or in any activity authorised by the 1967 or 1990 Acts. Such a reform would re-establish legal protection for medical conscientious objectors and reaffirm the Article 9 rights of healthcare workers. It would give reality to the protections afforded in the Equality Act.

There is a serious shortage of healthcare professionals; we are having to bring doctors and nurses from abroad. We spent £100 million bringing 3,000 GPs from other countries here this year, we are short of 3,500 midwives, and in 2016, according to the Royal College of Midwives, we spent nearly £100 million on agency nurses. There is a problem. Many young doctors, midwives and other healthcare professionals are leaving the UK. There are many reasons for this, but one of them is that those who labour at the coalface cannot engage in certain activities. We invest in their training; we need their skills—it is time to accommodate them.

I emphasise again that the Bill is not about reducing access to termination of pregnancy or to the withdrawal of life-sustaining treatment. It would simply mean that healthcare workers, of many different kinds, in registering their objection to the procedures defined under the Bill on appointment to a role, must be reasonably accommodated by those managing them so that they may work without involvement in those areas. Some 68% of abortions—126,000—are NHS-funded but provided by private companies. Some 2% are privately funded, and 30% take place in NHS hospitals, alongside all the other obstetrics and gynaecological procedures. Ninety-two per cent of abortions in 2016—some 170,000—were carried out at under 13 weeks’ gestation. Increasingly, these are medical abortions, involving the use of medication. That gives rise to the necessity to protect the rights of conscience of both GPs and pharmacists not to provide these services. That is what the Bill seeks to do.

The NHS could accommodate the number of conscientious objectors rather than forcing staff for economic or other reasons to engage in procedures which those staff simply, for reasons of conscience, cannot do. Reasonable accommodation of conscientious objection is a matter of liberty and equality—of individual freedom and social inclusion. That is why this is important and timely legislation.

I have heard that there is widespread support for the Bill. I know it has attracted support from all sides of this House and from the Commons. I hope that in moving it through Second Reading we will enhance the quality of the service provided to all our people and the environment in which healthcare professionals work. I beg to move.

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[Baroness O'Loan]

My Lords, I thank all noble Lords who took part in this debate, which has been interesting and, as I expected, challenging. The noble Baronesses, Lady Barker and Lady Thornton, raised what the noble Lord, Lord Steel, said. At the very end of Report, when the House of Commons debated possible amendments to the conscience clause, the noble Lord—then Mr David Steel MP—said:

“It also gives nurses and hospital employees a clear right to opt out”.—[Official Report, Commons, 13/7/1967; col. 1318.]


First, I will say a few words about what this Bill does not do. It is not a game; this is a very serious issue. The Bill does not remove patient decision-making in any respect. I reassure the noble Lord, Lord Dholakia, and others that it is not about abandoning patients or their families. It is not about causing them to suffer. It is not about forcing people to be treated against their will, as the noble Lord, Lord Steel, said. The terrible experience of the noble Baroness, Lady Richardson, with whom the whole House would want to express sympathy, was bad medical practice. It is not about restricting access to abortion. It is not about allowing patients to force medical professionals to do anything. It is not about seeking to reject or deny the welfare and wishes of patients. It is not about depriving people of the right to reject treatment or refuse consent to it. It is not about the merits or otherwise of abortion, fertility treatment or withdrawal of treatment at the end of life. It would not have a negative effect on hospice care.

I watched my brother-in-law in the hours before his death from motor neurone disease. He was incapable of moving, pondering at length on the proposed next treatment, before he accepted what was suggested, having satisfied himself that it was in accordance with his conscience. He died very shortly afterwards. This Bill would not deny others that right. It would provide a right of conscientious objection to those who genuinely object to engaging in particular medical situations. It is about highlighting the fact that the responsibility to provide National Health Service care is a responsibility of the health service, not the individual employee. It is about according statutory protection—not guidance, not administrative protection—to staff who do not have it, because the right to conscientious objection is not a universal right accorded to all medical practitioners by statute under the Abortion Act. It does not protect, for example, GPs and pharmacists.

The Bill is about allowing medical practitioners to act in accordance with their conscience. It is about recognising that people who have a fundamental objection to doing something should not be forced to arrange others to do it. It is about making the health service inclusive so that all medical practitioners can take their rightful place in the discipline of their choice rather than being restricted to areas in which they can work or being forced to leave the United Kingdom. As the noble and learned Lord, Lord Mackay, said, the Bill is about asserting that it is not necessary or right to force people to do things that they hold to be wrong. It is about legislating to ensure that we have the best possible health service, staffed by the best possible medical practitioners, providing the service in accordance with the wishes of the patient and capable of accommodating the conscientious objection of medical practitioners.

There seems a slight disconnect in the suggestion that if the Bill were passed it would be impossible to provide services to people. It would be interesting to know how many conscientious objections there are. However, the evidence suggests that the Bill would not deprive people of treatment. Therefore, I ask the House to give it a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Conscientious Objection (Medical Activities) Bill [HL]

Baroness O'Loan Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

I respectfully suggest that that comment exposes the fallacy in an argument that certainly the noble Lord, Lord Elton, who, alas, is not in his place today, advanced at Second Reading. His argument was that we should approach the question of how closely associated with a pregnancy termination one must be in order to invoke the conscience clause in the same way as one decides who should be regarded as guilty of aiding and abetting a burglary. Plainly, anybody keeping a look-out during a burglary or anyone driving a getaway car is guilty, but I respectfully remind those who are attracted to this analogy that of course burglary is a crime: it is something we actually take steps to discourage. That is why we have wide secondary criminal liability for it and punish those who contribute in any way to its commission. Abortion, by contrast, is lawful, and those undergoing it are entitled to terminate their pregnancies.

[Baroness O’Loan (CB)]

I hesitate to interrupt the noble and learned Lord, but will he confirm that abortion is not always lawful? Abortion is lawful only in those situations in which it was decriminalised under the Abortion Act 1967.

[Lord Brown of Eaton-under-Heywood]

I absolutely accept that of course that is right. I was putting it in that shorthand way simply to make the point. Of course, everything that I say in this respect plainly applies only to lawful abortion under the Act. It is in that context that we are debating the question. I suggest in parenthesis that it is intolerable that, for example, certain abortion clinics are from time to time surrounded by protestors who harass and intimidate those who are attending for—let me insert the word—lawful treatment by termination.

I return briefly to the judgment in Doogan, which explains, at paragraph 11, that participation means actually taking part in the process. Following a lengthy section of the judgment, which I will not weary the House with but which closely analyses the competing arguments on the case, the noble and learned Baroness, Lady Hale, returns to the all-important question at paragraph 38, the paragraph that the noble Lord, Lord Steel, quoted. I will just give a slightly fuller quotation, because he left out one or two bits that I think are worth reading into the record. He read this bit but I will read on. Paragraph 38 says:

“It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.


That is the theme taken up by the shorthand encapsulation of this judgment in Amendment 1 and a certain amendment which will follow.

In the very next paragraph of the judgment, there then follows an enormously helpful and detailed exegesis of that approach—a test of the principle against what was in that decision. It is an agreed list of 13 tasks included in the role of the two petitioners in that case, as labour ward co-ordinators. Some of those tasks were held to be covered by the conscience clause and others were held not to be. Some were specifically held to be covered but to an explicitly defined extent.

It is tempting to read out the entire paragraph and to invite a clear indication from those who resist these amendments as to where they are suggested to be too restrictive of the exemption provision. But in the interests of brevity I will simply quote three of the shorter sub-paragraphs, which set out certain of the agreed tasks. The first task referred to,

“management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations of pregnancy; this is not covered by the conscience clause as interpreted above”.

The sixth task referred to is,

“responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination”.

Finally, there is sub-paragraph 11—no, perhaps sub-paragraph 10, as it is shorter. It refers to:

“communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above”.

If it is unamended, the Bill would provide exemption from all these tasks by those in the position of the two Doogan petitioners.

--- Later in debate ---

That is why it is quite inappropriate to include in the Bill such wide powers for an objecting doctor to be able to prevent others providing treatments to which they personally object. Indeed, if it is the patient’s interest—which comes first—such doctors are currently under an obligation to refer their patients to someone else, particularly if by not doing so that patient is likely to come to harm. The first “do no harm” dictum of Hippocrates really should come first. That is why I support this amendment, which specifically limits conscientious objections to the doctor with hands-on responsibility, and no one else who may care for the patient. Many of the amendments we will shortly consider simply emphasise that point. Together, they make it difficult to understand why we need the Bill at all when we have two other Acts that cover the difficulty of conscientious objection so well.

[Baroness O'Loan]

I may have misunderstood the noble Lord, but I think that he said that the Bill would enable a doctor who will not engage with a particular process to prevent somebody else from engaging in that process. Is that what the noble Lord said? Could he explain to me why he said it, if so, so that I can understand better?

[Lord Turnberg]

The wording of the Bill makes sure that a doctor who has conscientious objections to a procedure has a responsibility under the Bill to prevent others being involved in such procedures, and in their training and supervision, which makes it very difficult for someone working with them to carry out such procedures.

[Baroness O'Loan]

Can I ask the noble Lord to refer me to the section of the Bill that does that, because it is not the intention of the Bill, and I actually do not believe that it is the effect?

[Lord Turnberg]

I can. Clause 1(1)(c) refers to:

“No medical practitioner with a conscientious objection to participating in … any activity … required to prepare for, support or perform termination of pregnancy”,


in this instance.

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[Lord Cashman]

Before the noble Lord, Lord McColl, replies, at the moment there is a duty to refer, but that duty would be overruled by Clause 1(2).

[Baroness O'Loan]

My Lords, delegation and referral are not the same thing and what is provided for in the Bill is a right to conscientiously object to delegation. I beg the pardon of the noble Lord, Lord McColl—I should not have interrupted.

[Lord McColl of Dulwich]

I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.

If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.

On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,

“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.

She concluded that,

“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.

We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.

This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?

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[Baroness O’Loan]

The noble Baroness seems to be suggesting that we are attempting in some way to restrict access to the three areas of healthcare services. That is absolutely not the case. The Bill provides that and acknowledges the current responsibilities of the Government to provide a National Health Service with the services that Parliament has agreed should be provided. I want to make that clear because I am not sure the noble Baroness understands it.

[Baroness Thornton]

The Bill does not do that. That is what this scrutiny is about. It really does not. If the noble Baroness really wants to make progress, she needs to bring forward amendments which clarify that. She has not done so, so these amendments are about probing that and, in particular, this issue. Rather than exhorting us to say what the Bill does not do, the noble Baroness needs to examine it and take on board its unintended consequences. That is what this House exists to illustrate.

[Baroness O’Loan]

That is exactly what we are doing. This is a very useful debate.

[Baroness Tonge]

I was not implying that the noble Baroness was trying to destroy the Abortion Act completely. I entirely accept that, but what she is doing could lead to the service being very badly distressed and may have the same effect in the end.

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[Lord Alton of Liverpool]

‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.

Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.

I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:

“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.


I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:

“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.


So when the noble Lord, Lord Steel, said in 1967:

“The Bill imposes no obligation on anyone to participate in an operation”,


I believe he was sincere. When he also said that the “conscience” clause,

“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],

I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.

[Baroness O'Loan]

My Lords, I have listened with great care to the various speakers who have articulated their views on this group of amendments. It has been a very profound and interesting debate and I thank all contributors.

As I said at Second Reading, the Bill does not seek to limit access to abortion. It could never result in a patient who had expressed a wish not to be resuscitated in an advance decision being forcibly treated. It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live. For the avoidance of doubt, it is only about enabling medical practitioners to withdraw from treatment which they perceive for moral or philosophical reasons, or for reasons of belief, to lead inevitably to death, whether of a living person or of an unborn child. It is not about doing things to patients; it is about some medical practitioners not having to do some things.

I want to allude for a moment to the various contributions on the subject of what the noble and learned Baroness, Lady Hale, said. I endorse what the noble Lord, Lord Alton, said—that Parliament could not have envisaged the way in which the abortion law would develop. The noble and learned Baroness, Lady Hale, chose the narrow meaning on the basis that it was more likely to have been in the contemplation of Parliament when the Act was passed. She acknowledged the existence of a broader interpretation. As the noble Lord, Lord McColl, very clearly said, we have the right, as a Parliament, to change things. I am suggesting that we need now to contemplate the situation in 2018, not the situation in 1967, so it is not about refusing people access to treatment. There have been suggestions that it is about denying patient autonomy. A patient does not have and never has had the right to compel a particular practitioner to do a particular medical procedure. However, they have the right to a service and the right, if they want it, to a second opinion, and that must continue.