Conscientious Objection (Medical Activities) Bill [HL] 23 March 2018. Why Nuala O’Loan’s Bill Is Right

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Conscientious Objection (Medical Activities) Bill [HL] 23 March 2018

Full debate:

https://hansard.parliament.uk/lords/2018-03-23/debates/BB7AB7EB-BE1F-4D9D-8E9B-CE227AB1D4C2/ConscientiousObjection(MedicalActivities)Bill(HL)

Extracts from the debate:

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 It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live.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.

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Treasury statistics show that the NHS deals with over 243 million patients a year—1 million every 36 hours—which is an astonishing figure. It is a vast organisation, which undoubtedly has the capacity to provide reasonable accommodation for those of its medical practitioners who are conscientious objectors in these limited areas. The NHS, as the noble Lord, Lord McColl, again said, employs almost 1.2 million people. It is therefore possible to allow midwives and doctors who have conscientious objections to termination of a pregnancy to care for the 700,000 women who give birth in our hospitals in England and Wales every year, helping those for whom conception is difficult or seems impossible, as the noble Lord, Lord Winston, has done with such success over 70 years, and working in gynaecological departments, helping women who suffer from a huge range of gynaecological conditions, some of which are very disturbing and interfere with their ability to walk and move around freely, and so on.

We have a shortage of obstetricians, gynaecologists and midwives and, of course, nurses. Part of the reason for that is that people do not apply for jobs in these areas. I have heard this from many practitioners. The noble Baroness, Lady Thornton, suggested that I did not produce evidence. I suggest that she rereads my Second Reading speech, not least the reference to the inquiry that was conducted here in Parliament on conscientious objection to abortion and its consequence.

It has been suggested that in the context of management jobs, such as clinical leads, it is necessary to require that there be no right of conscientious objection because abortions must be scheduled, and so on. However, it is not quite as simple as that. I think we can agree that no one person, however brilliant they are, has absolute professional capacity in every area affected by their area of clinical responsibility. Solutions are possible—and exist, and are practised—to address any difficulties. So, for example, a clinical lead has deputies, and such a person might be the one to take responsibility for that area of activity, allowing the person who has a conscientious objection to abortion to withdraw, but to progress through their careers into management while providing a service in all the areas; for example, of obstetrics and gynaecology, to which I referred a minute ago, facilitating and enabling conception, care of pregnant mothers, delivery of those 700,000 births each year and the care of those suffering from gynaecological diseases and other conditions.

It would be most helpful if we could discuss further the amendments in this group to see whether we can agree how reasonable accommodation might be achieved or provided for and so improve the service available to patients while protecting practitioners. I think we can reach a situation, given the good will that has been ​expressed in this House, by which we could ensure that services will not become difficult to access because of it, and that services will still be there.

There are some 60,000 abortions in the NHS each year; the rest are conducted in private clinics, so that number is actually a small percentage of the totality of the work of practitioners in obstetrics and gynaecology, where we have those 700,000 births a year and all the other work I have referred to. The Bill does not take away the duty of the NHS to provide services. That duty will remain. All that will be required of the NHS is reasonable accommodation for a limited number of people, which of course is recognised and accepted by all the royal colleges. Some of the amendments in this group seek to remove from protection all the proximate forms of assistance or co-operation, such as supervision, planning and delegation, through which a medical practitioner may be implicated very closely in the activity to which they conscientiously object. But, as has been said, supervising, planning or delegating the doing of X means making sure that X is done and, most importantly, that X is done right. The aim of the Bill is precisely to protect conscientious objectors from coercion through this type of involvement in matters intrinsic to the taking of life or the withdrawal of life-sustaining treatment.

Having listened carefully, I believe that as a Parliament and as a country we can afford and manage to provide protection to those for whom conscience makes activity designed to end life untenable. Forcing people to act against their conscience, leaving them in a position in which they never know when they will have to do something to contribute to the ending of life; accepting that hostility and exclusion are legitimate reactions to an avowed and profoundly held belief—for some a religious belief, for others a philosophical one—cannot be right. I have been told by Members of this House and many others of the ostracisation which can make life so very difficult for those who want to provide medical care to sustain and enable life, and to manage the dying of those who must die, with the greatest possible levels of palliative care. In a society that is proud of its historical contribution to the evolution of the fundamental British values of democracy, the rule of law, individual liberty and mutual respect, and tolerance of those with different faiths and beliefs, it is unacceptable if we do not have a proper, modern and appropriate law of conscientious objection.

In concluding, I urge those who have tabled these amendments to talk to us so that we can discuss a way forward that would meet their concerns As tabled, these amendments would not enhance the situation of all those who are regulated by the organisations in Clause 1(2)—we will come back to that important part of the Bill—nor would they enhance the experience of patients. Patients would still be able to accept the same services. It is possible to provide autonomy for patients and protect the conscientious objection of medical practitioners. They are not mutually exclusive—a recognition, perhaps, of the human rights of which the noble Lord, Lord Brennan, so eloquently spoke.

Interventions:

• Lord McColl of Dulwich

If she has a conscientious objection to it, then she should not be obliged to do it, because the 1967 Act specifically said that people did not need to do it. Acts of Parliament should not force people into doing things against their conscience—that is not the function of Parliament.

​Lord Alton of Liverpool

The noble Lord, Lord McColl, makes a very good point. Indeed, a case was referred to earlier in Committee concerning Barbara Janaway, who was exactly what the noble Baroness, Lady Tonge, described, a medical secretary. She said she would not, “set the ball in motion”, as a result of which she lost her job and the courts upheld that she should not be able to continue in that post. The debates in 1967 in the House of Commons did not consider cases such as that, because it was not envisaged that that might be a problem. That is surely why the noble Lord is right in saying that although the Supreme Court may rule in a particular way and say that that is where the law now stands, it is the job of Parliament to say that perhaps the law now needs to be change.

 

Lord Alton of Liverpool

 

My Lords, I am sure that the noble Lord is right in his interpretation of the Bill. It lays no duty on any other person to carry out that delegation and he is correct that there would be other people working in the service who would doubtless carry on as they do now. One abortion takes place every three minutes in this country, which is 20 every hour, 600 every working day and more than 200,000 every year. There have been more than 8 million abortions since 1967. Clearly, there is no shortage of people willing to participate in such procedures, but this Bill is about those who are unwilling to participate in them.

 

Lord Alton of Liverpool

 

My Lords, in his remarks just now the noble Lord, Lord Winston, invited me to contribute at this point in the Committee’s proceedings. I spoke at Second Reading and I do not intend to repeat what I said then. The noble Lord, Lord Steel, will not be surprised that I oppose his amendment. Nevertheless, over the nearly 50 years that we have known one another, I have always been grateful for the respect he has shown to an alternative view to the one he puts now and has put in the past. I was particularly grateful to him when this became a matter of policy in my former party. The noble Lord, Lord Steel, also resisted it becoming party policy because, as he said, it would polarise attitudes and mean that some people could no longer follow some issues of conscience because of party diktat.

Some 51 years ago, when I was at school, I wrote to the then leader of the noble Lord’s party, the late Jo Grimond, asking whether the Abortion Bill, which the noble Lord had placed before the House of Commons, was a matter of party policy or conscience. I was given the forthright reply: there are different views about this and it is a matter of conscience. It was never a problem for me, as the only new member of the parliamentary Liberal Party in 1979, to serve under the noble Lord, Lord Steel, and, indeed, to be his Chief Whip. The reasonable accommodation—how we accommodate one another—which I mentioned in my earlier intervention is at the heart of what this debate should be about. The noble Lord, Lord Winston, made some telling and helpful points in his contribution. The noble Lord, Lord Steel, said: “This isn’t the way to go about this”, but he would agree that, 50 years later, many things have come to pass that were never anticipated during the debates in 1967. A proper review—perhaps outside the proceedings of this Chamber—of the legislation, its implications and the ways we can protect people such as Mary Doogan, is long overdue.

She spoke in your Lordships’ House and her case goes right to the heart of today’s debate. She is, as the noble Lord, Lord McColl, said, an extraordinary woman who was involved in delivering over 5,000 babies and said in an interview:

“It is not about religion. It’s about conscience”.

She went on:

“It goes against everything we stand for … the women I cared for would never ever have known my views on abortion”.

This is very important. Here is someone who has been driven out of her calling in life. She did not go into midwifery to carry out abortions; she went into midwifery to deliver babies. Although I understand the reasons why the noble and learned Baroness, Lady Hale, found as she did—my noble and learned friend Lord Brown of Eaton-under-Heywood was right to refer to the judgment earlier—it is up to this place, as the noble Lord, Lord Brennan, told us, to then deliberate and decide whether the law should be allowed to continue to stand in that way.

Consider for a moment the changes in the law since 1967 and how they impact on people who may have a profound conscientious objection to the law. One is, for instance, the extension of the Act in cases of disability right up to and even during birth, on the grounds of things such as club foot, hare lip and cleft palate, let alone Down’s syndrome—90% of all babies with Down’s syndrome are now aborted. If I were working as a medic and was told that I had either to participate in—to be hands-on—or to facilitate such things, I would rather lose my job than do that. This is where I disagree with the noble Baroness, Lady Tonge, who said that such people should not join the service. Who do we lose if we take such an attitude to people who, yes, have a different view from the noble Baroness but nevertheless make an extraordinary contribution to the health service?

Baroness Flather

This is a very interesting point. Should they leave the service or not? I had a very recent experience when my husband was taken ill; he was dying and was taken to hospital. We had to make a decision about whether to keep his breathing going. My sons and I were there discussing this matter and it was a very difficult time for us. The doctor in charge came and spoke to us and told us what the situation was. We decided it was not the right time to prolong his life. If the doctor had then said, “I’m sorry, I have to get someone else to do this necessary job. I can’t do it because I object to it”, that would have been terrible. You can say that he should have prepared for that in advance, but how can he prepare for everything in advance? You do not know when a dying person will come into hospital.

Lord Alton of Liverpool

The noble Baroness is of course right; you cannot ever say with any certainty what will happen and how long someone will live. My noble friend Lady Finlay intervened on that point earlier and, at Second Reading, my noble friend Lady Richardson gave another good example, which I can come back to.

 

Baroness Flather

 

My noble friend Lady Finlay’s example is perfectly correct. It was not the same as my example. My example is that my husband had got to a stage where he really did not know what was going on. My noble friend’s example is of course totally different—and it is a very good thing that people have hospices to go to.

 

Lord Alton of Liverpool

 

We are agreed about that. The point I made at Second Reading when my noble friend Lady Richardson intervened on a similar point is that we do not need to go heroic lengths—that is the phrase people often use—to keep alive someone who would otherwise be dying. I think we sometimes confuse these two things. Let me return, if I may, to the particular point about abortion.

 

Baroness Tonge

Very briefly, by way of personal explanation, I hope I did not imply that people should leave the service if they were required to perform an abortion. I was saying that there are many specialties to go into in medicine. My goodness, you can do anything in medicine, from management and pen-pushing right down to—well, I will not say “down to” because it would demean whoever I got down to. There are many branches of the medical profession; there is no need to go into obstetrics and gynaecology in the knowledge that you will have to do things totally against your conscience.

 

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.

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• Lord Mackay of Clashfern
•  It is trying to fit the system to accommodate, so far as possible, the real objection people have. It is not just an objection to being hands-on; they are thinking about killing human life. I think all of us would think, if that idea were correct, that that was a very dangerous operation to have regard to.
• Baroness Thornton

I take exception to that idea. There are people in this Chamber who do not agree with that definition of killing human life at that stage of an embryo’s growth.

• Lord Mackay of Clashfern

I am not saying that this is right; I am trying to describe what I believe to be the conscientious objection. I am not saying that it is proper. I have not applied for the health service, unfortunately, so I do not need to say what the extent of my conscientious objection would be, but there is no doubt in my mind that that is the nature of the conscientious objection, although people may have slightly different views about how far it extends. That is why the suggestion of the noble Lord, Lord Winston—I acknowledge his wisdom—is the best way forward, subject of course to making sure that it was used not in a discriminatory way but in trying to accommodate the full extent of the objection within the framework of the administration of the health service.

• Lord Alton of Liverpool

Does the noble and learned Lord accept, though, that the narrow case of Mary Doogan and the midwives in Scotland—she had after ​all been involved in more than 5,000 live births, bringing children into the world—illustrates what could never have been in the minds of legislators in 1967, as one can see in the Hansard of that period, and how much things have changed in the intervening years? That is not just about changes in attitude and culture; to pick up the point that the noble Baroness just made to the noble and learned Lord, there are those among us who believe that life begins at conception and that the science is right, and therefore that the law is right in saying that, for instance, as he referred to earlier, only for the first 14 days can experiments take place on the human embryo. That must be 14 days after something, and the law states that explicitly. That is not an unreasonable position, although I accept that these are contested positions. How therefore do we find, in a society where we respect difference, that there can be contested positions without discrimination falling on those who carry out those contests?

• Lord Mackay of Clashfern

That is why probably the best solution that I have seen so far is to try to accommodate a contract on which you enter such conscientious objections as you have. I can see that that may limit the opportunities within the health service that a person with a conscientious objection has, but then that may be part of what you have to do.

• Lord Alton of Liverpool

Does the noble and learned Lord therefore think it is a good situation for us to be in that, for instance, people who have religious views or who are atheists and are opposed to taking the life of an unborn child in the womb are by and large pretty well excluded now from gynaecology and obstetrics?

The noble Lord, Lord Winston, says from a sedentary position that that is not true. If he can give an example to me of, for instance, people who hold deeply committed Christian evangelical views or who are committed Roman Catholics or, for instance, Orthodox Jews who would support, for instance, the taking of life up to birth, as the law now allows since 1990 in the case of Down’s syndrome, I would be surprised, but I would be interested to hear those names.

 

• Lord Brennan (Lab)

The present Bill seeks to introduce a restatement of the law concerning conscientious objection. As far as I am aware, there has been no specific Bill in Parliament with a title such as this, even though it is restricted to medical practice. Conscientious ​objection springs from conscience—the moral sense of right and wrong—and it is a principle of human rights recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the European Charter of Fundamental Rights. For 70-odd years, we have regarded this as a basic human right, not an excepted privilege from the norm.

The question for the Committee is whether it is appropriate in principle to treat conscientious objection in a narrow test or in a wider test. The Bill advocates a wider test than that which has gone before. However, because it does so and because what went before has been said to be a narrow test, the Committee has to decide what the present principles should be in terms of tests. We are here not to vindicate the judgment of the Supreme Court but to exercise legislative judgment about what is fair and reasonable in applying human rights in our society.

Doogan was specifically about the relationship between Sections 1 and 4 of the Abortion Act 1967. Was the conscientious objection provision in Section 4 consistent in its scope with what was envisaged in Section 1? This Bill puts that aside. It effectively replaces Section 4 of the Abortion Act and, if necessary, on Report that section can be repealed by an amendment to this Bill. So we are not rehearsing history here; we are establishing what is right for the future.

In the judgment of the noble and learned Baroness, Lady Hale, agreed to by the other judges, Doogan expressly declined to look in detail at the Human Rights Act. It was a decision based on the co-extensiveness of parts of the statute. It does not dictate what this House should or should not do.

What should we do? First, Article 9 of the Human Rights Act, which is now part of our legislative framework, applies to our deliberations. Article 9 expressly enacts a freedom of belief, religion and conscience. It is not a sideline addition; it figures in all these declarations. What is meant by conscience?

• Lord Brown of Eaton-under-Heywood

Does the noble Lord, whom I would be happy to call my noble friend, agree that in the case of Doogan the court looked at the Article 9 point? It dealt with that. Alas, I have given my copy of the law report to Hansard, but I am sure that he is aware of the decision and accepts that the court looked at Article 9.

• Lord Brennan

I read the Doogan judgment with equal care to my noble and learned friend Lord Brown, but the fact is that here we are considering a test which was not considered in Doogan. It is different wording and a different context of statue. The point that I was making a moment ago was that Article 9 creates a right to exercise conscience.

Article 9.2—I invite your Lordships to listen carefully—says that that right prevails unless it is,

“necessary in a democratic society”,

to introduce limitations for specific reasons, one of which is the protection of the rights of others. I heard nothing in the Second Reading debate to evidence the ​fact that it is “necessary” to limit this test for conscientious objection. We are dealing with evidence, not policy opinion.

Let us compare the House of Lords exercising its legislative function with the Supreme Court. It specifically declined to decide between wider and narrower tests on the basis of societal interest and the supposed threat of one side or the other, because, it said, it would be speculation. The amendments, in effect, invite us to speculate that, without them, the rights of others would suffer to such an extent that we would have to change the law. That is a very tough hurdle to overcome. If there is no evidence before the House of Lords, and in the debate so far there has not been—

• Baroness Thornton (Lab)

I thank my noble friend for giving way. At Second Reading, the noble Baroness, Lady O’Loan, mentioned evidence several times but did not actually tell us what that evidence was. So I am unclear as to what the evidence is that is being prayed in aid of in this private Member’s Bill. In fact, my noble friend has just made a statement about the restriction of rights, but the amendments are about retaining the situation as it is at the moment, which guarantees certain rights and provides a balance.

• Lord Brennan

 

I respect my noble friend’s opinion. The point I am making is that we are not here talking about a balance between different rights. We are talking about the restriction of one set of rights in favour of another because it is “necessary”. But how is it necessary to reject this legislation in favour of the past test?

Let me turn for a moment to the question of responsibility. When I used the phrase “the moral sense of what is right and wrong”, it bespeaks the exercise of responsibility through conscience. The narrow test that is proposed—hands-on against hands-off—does not appear to be conscience based but proximity based. Where is it reasonable to draw the line and upon what principle do we draw it? If it is proximity, where does the moral sense of conscience fall away? Does it fall away because you are lower down the supply chain in the treatment? Let us compare medical abortion to a surgical abortion. Is the pharmacist who draws up the drugs outside the responsibility list? Is the person who brings the drug from him or her to the treatment room to give to the patient in or out of the system? Is it only the person who gives the drug to the patient? Many abortions are of that kind—abortifacient. The surgical abortion, which you understandably think of first, is a different exercise. This Bill covers both.

I appreciate from the speeches that have gone before that I am putting forward a different proposition from that which was feted by anyone at Second Reading. To pass this Bill we have to obey the Human Rights Act. To obey the Human Rights Act, we have to think objectively on the basis of adequate material. Without it, the right of conscience should not be prescribed by law as we would be required to do under the Human Rights Act. Moral responsibility rarely comes before us to consider. It is all a question of balancing our view against the conscience-holder’s view. It is what is right in our legislative regime.​

I regret that I was not able to attend Second Reading. I admire the scope of the speeches that were made, particularly that of the noble and learned Lord, Lord Mackay of Clashfern, whose commitment to reason and reasonableness are of great value to this House, particularly on moral issues. He was right when he said that we should not make the staff involved in this kind of process do that which is contrary to their conscience and belief.

Background to the Bill:

• The Times – Lord Mackay – It is not right to force medics to act against their beliefs
• Mail – The midwife hounded out of her job after 30 years (and 5,000 babies) because she refused to supervise abortions
• Belfast Telegraph – O’Loan submits Bill that would allow medics to refuse to carry out abortions
• Herald Scotland – Changes to abortion provision means NHS staff need more legal protection
• BMJ – Journal of Medical Ethics – Conscientious Objection: A Quick(ish) Answer
• Mail – Lord Alton – Why this is a vital matter of conscience
• The  Spectator – Conscientious objection is an important medical principle
• Prof Andrew Tettenborn – Why we must protect the conscience rights of medical professionals