Implications of the proposed AHPRA Code of Conduct

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from Luke’s Journal 2019 | Hot Topics #2 | Vol. 24 No. 1

EDITOR’S NOTE:
The request by AHPRA mid-2018 to comment on its intended changes to the medical code of conduct sparked a widespread flurry of debate, letters and petitions via email and social media. Many of these conversations involved participation by CMDFA members. Here are some of them.

There’s a growing sense that the role of a doctor’s conscience in their practice of medicine is under threat.

There are concerns about the implications of clauses in the proposed new AHPRA Code of Conduct.¹ More substantively, there has been a vigorous debate in the literature on medical ethics and law on whether it is ever appropriate for a doctor’s ‘private’ (religious and) moral opinions to impinge on the provision of patient care.²

There are many issues at stake here: justified rejection of medical paternalism; concerns about subjective private morality compromising good patient care; questions about appropriate engagement in a state or socially-sanctioned service.

There are many issues at stake here: justified rejection of medical paternalism; concerns about subjective private morality compromising good patient care; questions about appropriate engagement in a state or socially-sanctioned service.

Whilst I wouldn’t say that they all have one thing in common, arguments for excluding conscientious objection from medical practice do presume a problematic understanding of medicine and other health care professions: namely, that they are morally neutral practices.

“Morality is not an imposition on (supposedly neutral) medicine… Moral questions are an inevitable feature of good medical practice”

The presumption is that whilst medicine may be undertaken by good people for what they see as morally good reasons, and that those motivations might prompt them to go to work each day, their private morality needs to be parked at the door of the clinic. This presumed moral neutrality of medicine is simply mistaken. 

Any reasonable construal of medicine requires the recognition of its inherent morality, such that all medical practice is an exercise of the clinician’s moral agency – in which assessments of the actual, rather than the perceived, good of the patient are paramount. A simple analysis of power and its use makes that plain.

What prompts a patient to go to their doctor is a perceived need: a weakness or vulnerability that the doctor’s expertise can meet. The knowledge, expertise, skills, access to resources denied to others (medication, surgical procedures and the like), and even such basic practices as history-taking and physical examination, all place the doctor in a position of power. And with power comes responsibility – moral responsibility.

Morality is not an imposition on (supposedly neutral) medicine; it is part of its very substance. Moral questions are an inevitable feature of good medical practice.

How ought moral judgements influence clinical practice?

The question must then be not whether but how ought a doctor’s moral judgements influence their clinical practice? In what circumstances might a doctor rightly object to a medical or surgical procedure on grounds of conscience? And what form should that objection take? I would suggest that there are important questions about the scope and limits of such objection.

It needs to be a properly moral objection that is relevant to this particular person’s condition of need. To refuse treatment to someone with an STD on the grounds of their (presumed) sexual immorality is as unwarranted as refusing to treat someone with lung cancer. Perhaps unwise or ungodly choices have led to them being in this situation of need, or perhaps not – it may be their spouse’s fault they have an STD, or just bad genetics that they have lung cancer.

Furthermore, the harms – moral harms – that denying treatment would cause for them and others, outweighs any presumed concerns we might have about our treatment tacitly approving their behaviour.

I cannot see a case for conscientious objection in such circumstances, and know of no one who would seriously suggest it. It would be equally unconscionable to refuse to treat someone with pneumonia because they identify as LGBTQI+, or Muslim, or secular humanist. While we may question the legitimacy of their lifestyle and other choices, I fail to see how that is relevant to how we ought to treat them as a person in need. Conscientious objection gives us no right to morally objectionable judgementalism or bigotry, or to punitive refusals to treat. But there are legitimate objections that may be made to some kinds of treatment that do not pick out morally irrelevant qualities of that person.

Many – perhaps most – doctors who object to euthanasia believe that it is wrong for doctors to take the lives of their patients, or to assist them in doing so themselves, and that to do so would be both wrong and harmful.³

Many – perhaps most – doctors who object to abortions on demand believe that there is another person’s life at stake, and that terminating the pregnancy both harms that developing person and wrongs them.

Many – perhaps most – doctors who object to some cosmetic procedures believe that it is wrong for doctors to allow culturally determined ‘body fashions’ and unrealistic perceptions of bodies and ageing to be inscribed on the bodies of their patients. (Which is not to say that all cosmetic and reconstructive surgery is wrong; it is to suggest that there are important questions to be raised about the cosmetic surgery industry and its role, product, and perpetrator, of unhealthy body image in late modern capitalism. Dare I say, questions of this kind deserve more attention in Christian reflections on medicine than they generally receive. But I digress…). These may all be contested claims, but they are morally relevant.

These are non-trivial questions of moral substance that have direct bearing on treatment decisions.⁴ They are questions that can rightly be asked about the deploying of medical power and knowledge in these circumstances. They are questions that do not intrude illegitimately on a morally neutral social service, but which arise out of the fundamentally and inescapably moral nature of an enterprise such as medicine. They are questions – big questions – about the nature and goals of medicine, and its role in a well-ordered society.⁵

Simply ruling such questions out of court does not invalidate them. Equally, stridently asserting the right of conscientious objection without addressing them will win us no friends and gain no traction. We ought to continue to raise questions about what medicine is, what it’s for, and what role medicine and medical practitioners ought to play in our evolving society.

We need to learn how to ask – and answer – those questions well, for the sake of both our patients and our profession.

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References

1. See https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx and the draft of proposed changes file:///C:/Users/andrews/Downloads/Medical-Board – Consultation – Draft-revised-Good-medical-practice – A-code-of-conduct-for-doctors-in-Australia.PDF. CMDFA has raised concerns about the wording of the provisions regarding compliance with the law, public comment and cultural sensitivity and the ways this might impact on a clinician’s exercise of moral and clinical judgement.
2. See Julian Savulescu’s criticism of the notion, “Conscientious objection in medicine.” BMJ 332 (2006):294- 97; https://www.doctorportal.com.au/mjainsight/2011/42/julian-savulescu-beliefs-can-do-harm/, and Trevor Stammers’ defense of the notion, http://www.cmq.org.uk/CMQ/2013/Aug/
   nhs_no_place_for_conscience.html
3. It is important to distinguish between harms and wrongs. A harm is an injury done to a person which may or may not wrong them (punishment, of whatever form, is a case in point of a harm without a wrong). A wrong is viewing or treating a person in such a way as to ignore or deny or pervert their unique moral worth, which may or may not entail harm (lust is sinful not just because of the way it both expresses and fosters disordered desires, but because it wrongs another in treating them as an object of desire rather than a person). For this important distinction, see Nicholas Wolterstorff, Justice: Rights and Wrongs. Princeton: Princeton University Press, 2008.
4. There are many others, but they lie outside the scope of this piece – questions such as whether a doctor who refers or directs a patient to such treatment is morally complicit in their decision (open to question in my view), or whether their long-term interests are better served by such a referral and the ongoing caring relationship that this may foster (as I suspect is often the case).
5. I address these larger questions in Andrew Sloane, Vulnerability and Care: Christian Reflections on the Philosophy of Medicine. London: Bloomsbury T&T Clark, 2016.