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.

--- Later in debate ---

[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.