Conscientious objection to participation in treatment & the obligation to refer

Yesterday the United Kingdom Supreme Court published its judgment in Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68. The Court consisted of Lady Hale (Deputy President) who wrote the judgment; Lords Wilson, Reed, Hughes and Hodge expressed their agreement.

As explained in the press summary, the Abortion Act 1967 section 4(1) establishes a right of conscientious objection in that it 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’ unless, pursuant to subsection (2), it is ‘necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman’.

The issue arising in the appeal was the scope of that right of conscientious objection, the respondents being two midwives of Roman Catholic religious belief who did not wish to be involved in delegating, supervising and/or supporting other staff to participate in and provide care to patients throughout the termination process . Their hospital took the view that such delegation, supervision and support did not constitute ‘participating’ in the treatment.

The court held that a narrow meaning of the words ‘to participate in’ is more likely to have been in the contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful. ‘Participate’ means taking part in a hands-on capacity: actually performing the tasks involved in the course of treatment [37-38].

A statement of principle appearing in the judgment at [40] is that a necessary corollary of the duty of care owed to patients by members of the health care profession is that any conscientious objector is under an obligation to refer the case to a professional who does not share the objection. The relevant passage from the judgment is as follows:

Whatever the outcome of the objectors’ stance, it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional’s duty of care towards the patient. Once she has assumed care of the patient,
she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection.

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