When an individual makes a conscientious refusal, she declines to carry out a pro- cedure or supply a medication that would otherwise be provided by the profession.
Since patients have the right to access the health service being denied, the profes- sional’s rights to act autonomously and with integrity are in direct conflict with the patient’s rights (and correspondingly the profession’s duty to provide those services).
Savulescu argues that a healthcare professional who conscientiously objects is unjustifiably failing in her duties: “When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors’ conscience has little place in the delivery of modern medical care”
(Savulescu 2006: 294). This is based on the claim that it is the practitioner’s duty to provide healthcare services and that patients are treated unfairly when access to services depends on practitioners’ values and when some patients may be unable to seek alternative care. Savulescu claims it is unreasonable for individuals to expect to be able to opt out of activities that are central to their role. Practitioners can expect to be asked to perform particular procedures and should avoid the profession if they are not prepared to provide these services (e.g. obstetricians should be will- ing to terminate pregnancies, and pharmacists should be willing to supply contra- ception). By implication, an individual should not sign up for the profession if she feels she cannot carry out these duties because of her values and should resign from her profession if she encounters such conflict.3 Commenting on the duties of physicians, Savulescu writes, “people have to take on certain commitments in order
3 This may seem a particularly hard line when applied to those who find their values conflict with practices that have been introduced after they joined the profession due perhaps to innovations in medical treatment.
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to become a doctor. They are a part of being a doctor. Someone not prepared on religious grounds to do internal examinations of women should not become a gyn- aecologist. To be a doctor is to be willing and able to offer appropriate medical interventions that are legal, beneficial, desired by the patient, and a part of a just healthcare system” (Savulescu 2006: 295).
Savulescu’s position is known as the “incompatibility thesis” (Wicclair 2008:
172) because the claim is that holding values that prevent one from performing the duties of a healthcare practitioner is not compatible with being a healthcare practi- tioner. It has, however, been shown that the incompatibility thesis is not problematic if the practitioner refers the patient to a colleague who is willing to provide the service. This is because it is the profession itself, not the individual practitioner, that must provide certain services (Brock 2008: 193). It does not matter which profes- sional provides the service as long as the duty is fulfilled by the profession. Indeed, Savulescu is in agreement that conscientious refusals are sometimes acceptable in order to honour the liberty of the practitioner if there are plenty of other practitio- ners available to provide the service.
The conventional compromise allows an individual professional to act in accor- dance with her conscience (to some extent) without denying the patient access to health services. It is based on the principle that the duty to provide healthcare ser- vices to the patient is stronger than the right to conscientiously object. Typically, the conventional compromise involves three parts:
1. The professional provides the patient with information about the relevant service or treatment.
2. The professional informs the patient of an alternative means of accessing the service or treatment she needs.
3. This means of access does not present an unreasonable level of burden for the patient (Brock 2008: 194).
This compromise fits well with common sense; the individual pharmacist need not provide the service that she believes so strongly would be wrong to provide, and the patient can receive the treatment without very much inconvenience. There are, how- ever, a couple of problems with this response.
The first difficulty is in interpreting “unreasonable burden”. It seems sensible and fair that the referral must not present an unreasonable level of inconvenience for the patient. Unreasonable burdens may include a long journey to another pharmacy, a long waiting time before a service can be accessed (perhaps with worsening symp- toms, reduced effectiveness of treatment, a longer period of anxiety or simply the inconvenience of waiting longer than anticipated), financial costs incurred or emo- tional distress caused by the referral.4 However, what seems reasonable to one person will not be reasonable to another. The ambiguous nature of claims for rea-
4 In Great Britain, the General Pharmaceutical Council requires pharmacists to ensure that referrals allow patients to access treatment within an appropriate timeframe that will not compromise con- traceptive cover or effectiveness of the treatment. In making this assessment, pharmacists are advised to consider factors such as the practice opening hours and the patient’s ability to get there (Royal Pharmaceutical Society of Great Britain 2014: 136).
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sonableness might also make it hard to reach firm conclusions in a dispute over whether a referral had presented an unreasonable burden. Further, the burdensome consequences of a referral could be long-lasting, unpredictable and difficult to mea- sure or prove.
The second challenge to the conventional compromise is that there is serious doubt as to whether it safeguards integrity at all. This is because the compromise still requires the pharmacist to facilitate the patient to access the treatment or service to which she has an objection. Take the example of a pharmacist, Sarah, who has a conscientious objection to supplying EHC because she believes it is wrong to inter- fere with the natural process of conception. A patient comes to Sarah with a request for a non-prescription based, over-the-counter supply of EHC. In accordance with the conventional compromise, Sarah refers a patient to a pharmacist on the same street who she knows would be willing to make the supply. The patient follows the referral and is supplied with EHC.
In this case, Sarah has not succeeded in her aim to avoid participating in an act that she believes amounts to wrongfully interfering with the natural process of con- ception. Although she herself did not make the supply, she was nevertheless involved in the process of the patient obtaining EHC. In other words, by making the referral, the pharmacist is still involved in the provision of the service to which she was objecting. Furthermore, Sarah was involved in a morally relevant way (i.e. she understood the possible outcomes of her referral and was a willing participant) and therefore has a degree of moral responsibility for the supply of the pill to this patient.
Even so, Sarah may be less responsible than she would have been had she made the supply herself. This is because her responsibility may have been diluted by the inclusion of another moral actor, namely, the pharmacist to whom the patient was referred. In making the referral, Sarah changed the event into one of cooperation;
without Sarah’s input, this supply of EHC would not have been made, but likewise without the input from the second pharmacist this supply of EHC may not have been made. This is analogous to the responsibility an individual committee member has for a decision made by a committee, for which a unanimous vote is required (Mellema 1985: 178). For Sarah, as with the member of the committee, her action (the referral) was not sufficient to bring about the supply of EHC. However, if Sarah had made the supply directly, her action (the supply) would have been sufficient and she would have borne full responsibility for the supply.
However diluted a pharmacist’s responsibility is, she still bears some responsi- bility, and a pharmacist seeking “clean hands” would only achieve this by not mak- ing the referral.5 It has been suggested that there is a moral distinction between direct and indirect referrals, such that a pharmacist making a direct referral would be morally complicit in the supply, but if she were to make an indirect referral, she could not be said to be morally complicit (Chervenak and McCullough 2008: e2 as
5 This is not necessarily a major concern for pharmacists. For instance, research has revealed moral passivity among some pharmacists who do not always engage in moral decision-making even when they regarded something as ethically problematic. Instead, pharmacists admitted shifting the moral responsibility to the prescribing doctor (Cooper et al. 2008b: 443).
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discussed in Wicclair 2011: 37–38). A direct referral involves the first pharmacist making specific arrangements for a second pharmacist to make the supply. If Sarah were to telephone the pharmacist on the same street to check his availability, check his willingness to make the supply and let him know to expect the patient and were to give the patient specific instructions about how to reach the second pharmacist, then the referral would be direct. If instead Sarah were to tell the patient to use the Internet to find the address of another pharmacy that might make the supply, then the referral would be indirect. Sarah’s indirect supply has elongated the causal chain that leads to the supply of EHC, and some suggest this reduces complicity (Cantor and Baum 2004: 2011). The indirect referral also increases the chance that the patient will not obtain EHC at all (e.g. if she does not get around to finding an alter- native pharmacist). This in turn may make the final outcome more or less foresee- able (e.g. a pharmacist in a busy city setting might reasonably suppose the patient could access the medication elsewhere, while a pharmacist in a remote rural setting would know that it is less likely that the patient would find an alternative). This arguably increases or reduces moral culpability, in parallel with legal principles.
Note, however, that the less foreseeable the outcome becomes, the less helpful the referral is, and this could be to the point of the referral being obstructive or giving rise to an unreasonable burden for the patient.
Public Disclosure of Conscientious Objections
A practical solution to the inevitable complicity of a referral may be for pharmacists to give advance notice of which services they are unwilling to provide, reducing the number of patients who would otherwise approach the pharmacist for treatments of services to which the pharmacist has an objection and therefore reducing complicity by way of referral. Aside from a strategy of advance notification, it would not be possible to avoid complicity without defying the conventional compromise. It has been suggested by Harter, in relation to physicians, that public disclosure of consci- entious objections would reduce instances of delay or discontinuation of patient care (Harter 2015: 225). Elsewhere, I have argued that advance notification is akin to a blanket refusal to provide a service and that this contravenes one of the condi- tions of the conventional compromise, which is that the patient should not be sub- jected to an unreasonable burden (Deans 2013: 56–7). While Harper is correct in pointing out that advance public notification could be advantageous to patients, this is only in comparison to situations in which the patient approaches a professional who has an objection and is then referred to another colleague in accordance with the conventional compromise. There may be circumstances in which a referral would be inappropriate because it would present an unreasonable burden for a patient. In such cases, it is less likely that advance notification of a conscientious objection would be in the patient’s favour.
It might be objected, however, that a blanket refusal does not contravene the conventional compromise because the obligations associated with the conventional
Conscientious Refusals in Pharmacy Practice
compromise only apply in circumstances in which a patient approaches a pharma- cist with a request for provision of a service to which the pharmacist has an objec- tion. If the patient does not approach the pharmacist in the first place, then arguably the obligation to make the supply in cases in which a referral would cause an unrea- sonable burden to the patient does not apply. This is because, by making a blanket refusal, the pharmacist is simply implementing an absence of service. By giving advance notice, the pharmacist is omitting, rather than refusing, to provide the ser- vice. This absence of service, so the objection runs, relieves the pharmacists from any obligations that would otherwise be associated with provision (or refusal) of the service.
This objection is problematic for two reasons. First, it is wrong to regard a blan- ket refusal of a central pharmacy service as a mere absence of a service. Unlike some other absences, this lack of provision is not morally neutral. When a pharma- cist makes a central service unavailable, she is failing to provide the standard pro- fessional services. She cannot obliterate the associated obligations by simply removing one of the services, and one of those obligations is to redirect the patient where appropriate. The absence of a central pharmacy service is not like absences of auxiliary, non-pharmacy services, for example, film processing. In the absence of these kinds of services, pharmacists are under no obligation to aid would-be cus- tomers because there had never been an obligation to supply the service in the first place.
The second problem with the objection is that it wrongly assumes that the method of communication (e.g. a refusal declared in advance on a poster, instead of a refusal made face-to-face) alters the obligations of the pharmacist. This rests on the false premise that pharmacists only have obligations towards patients with whom they directly interact. This is not true; it is well accepted that pharmacists have obliga- tions towards the public (e.g. this motivates public health initiatives by pharma- cists). This is not to say that pharmacists have obligations to actively seek all members of the public who may benefit from their services, but the obligation to serve the public does include an obligation not to discourage patients from seeking a service. This is reinforced by Wicclair’s argument that each individual pharmacy practice has an obligation to promote the public health, safety and welfare of the population within its catchment (Wicclair 2011: 136). This obligation is derived from a commitment made when the licence was given, from principles of reciprocal justice (i.e. fair exchange of rights and privileges with obligations) and from other moral obligations (e.g. beneficence). To properly fulfil this obligation, Wicclair argues that a “pharmacy-by-pharmacy” standard should be adopted. This is opposed to a “general public availability” standard, which would see a population served by the pharmacies in the area, without any one particular pharmacy being obliged to fulfil the obligation. Wicclair argues that the pharmacy-by-pharmacy standard is justified on the grounds of fairness (especially as some decisions about which medi- cines to stock would be business-led. A pharmacy-by-pharmacy standard would avoid any one pharmacy carrying the burden of providing services that were less profitable or less advantageous in business terms). Wicclair also claims the general public availability standard would be unworkable. In instances in which more than
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one pharmacy could serve the needs of the population, there is no obvious way of deciding which pharmacy this should be. In addition, it would be infeasible to mea- sure whether patients’ needs could be adequately met through implementation of a general availability policy because the criteria (e.g. whether requiring a patient to travel for her medication would be excessively burdensome) are controversial and elusive6 (Wicclair 2011: 140–141). Each pharmacy ought, therefore, to be available to serve the relevant population.
There are other reasons pharmacists may be encouraged to publicly disclose their position. The most obvious is that public disclosure is congruent with an open, honest and transparent profession.7 More fundamentally, Brownlee argues that pub- lic exposure goes some way towards proving that the individual is truly consistent and non-hypocritical. Brownlee classifies conscientious (or, to use her terminology,
“personal”) objections as a non-communicative disobedience, or personal disobedi- ence, instances of the individual avoiding certain action without true conviction (Brownlee 2012: 27). According to Brownlee, where disciplinary action is relevant, those who do not publicly declare their position openly should be treated more harshly than they tend to be, and those who are prepared to pay the costs of standing up to their beliefs publicly should be treated less harshly then they tend to be (Brownlee 2012: 8–9). Open dialogue, in his view, is a key element in any genuine pursuit of change to policy or law, and this is absent when the objecting individual keeps her position private. This may be evasive, for example, when a pharmacist who privately objects to the supply of methadone to drug users busies herself when she sees that the patient who regularly visits the pharmacy for his methadone pre- scription is next in the queue, leaving her colleague to serve the patient. Alternatively it could be non-evasive, for example, when a pharmacist with an objection to the use of contraception exercises a conscientious objection by having an initial discussion with the patient and then referring her to a colleague for supply. Her refusal to sup- ply is not affected by whether or not her position is publicly known; she simply desires non-interference in her decision to not make the supply. Brownlee claims that civil disobedience (communicating one’s objections to regulations, policies or law) is more deserving of respect than a personal objection or a conscientious objec- tion, because it displays a greater degree of moral conviction (Brownlee 2012:
15–50). But it should be remembered that the two are not mutually exclusive; a pharmacist might quietly refuse to make a supply to a patient and engage in rigorous debate with her colleagues and the regulatory body in an effort to change policy. In cases like these, full disobedience (e.g. not following the conventional compromise with the intention of being called up to a disciplinary panel) will be at the expense of the patient. One reason a pharmacist may not do this is because she holds patient
6 Interestingly, this is not regarded as an insurmountable problem when similar criteria are applied in the third part of the conventional compromise.
7 However, it is worth noting that sharing one’s personal beliefs is not always regarded as appropri- ate. For example, the British Medical Association’s guidance for doctors who conscientiously object is that they should not share their moral views unless they are explicitly invited to do so (BMA 2015).
Conscientious Refusals in Pharmacy Practice
welfare and autonomy higher than the principle she would like to adhere to by con- scientiously objecting. If, however, the pharmacist regards the principle as more important than the patient’s autonomy (e.g. a pharmacist who believes the use of EHC amounts to killing an innocent person), then she may be driven to take a stand.
Wicclair cautions against how conscientious objections are used: to prevent the pharmacist in participating in wrongdoing or to prevent another person in participat- ing in wrongdoing, “The point is to allow individuals to refrain from performing actions against their conscience and preserve their moral integrity. However permit- ting x to refrain from acting against x’s conscience is not to be confused with enabling x to prevent y from performing legal actions that are contrary to x’s (but not y’s) ethical or religious beliefs” (Wicclair 2011: 112). This is important because the conscience clause is designed to allow a professional to preserve her integrity; it is not intended as a direct instrument for wider change, though widespread, organised conscientious refusals could equate to a protest movement within the profession.
Adding Further Restrictions to Permitted Use of Conscientious Objections
So far, it has been shown that while there is good reason to allow pharmacists the right to conscientiously object, restrictions should be in place (the conventional compromise or a variation thereof) to ensure that pharmacists’ integrity and auton- omy are preserved as much as possible without jeopardising patient welfare.
Contemporary policy and literature on this subject suggest some further limitations should be set so that only conscientious objections based on certain grounds should be considered valid. Increasing the limitations would be a further restriction of the pharmacist’s autonomy, which would come up against arguments in support of con- scientious objections that are based on the premise that a variety of moral and reli- gious beliefs ought to be tolerated. Further conditions for the acceptability of a conscientious objection are that the reasons for the refusal should be reasonable (Card 2007: 13), should not be based on prejudice (Wicclair 2014: 279), should be in keeping with the core values of the profession8 (Wicclair 2000: 217 and Deans 2013: 53) and should be genuine (Meyers and Woods 2007: 20). This list, and each individual item on the list, presents a tall order. Looking at each in turn, one can see that none of these criteria is easily or completely achievable but nor is it futile to aspire to these requirements.
It is “not unreasonable to ask for reasons”, states Card (2011: 62), the “beliefs on which conscientious objection is based must be reasonable and should be subject to evaluation in terms of their justifiability” (Card 2007: 13). Under such a proposal, the reasons behind a conscientious refusal would have to be based on scientific knowledge and, where applicable, true or not implausible non-clinical claims.
8 A similar criterion of goals of the profession has also been suggested (Wicclair 2006: 244).