When an individual makes a conscientious refusal, she declines to carry out a procedure 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 professional’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 willing to terminate pregnancies, and pharmacists should be willing to supply contraception). 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. Commenting on the duties of physicians, Savulescu writes, “people have to take on certain commitments in order 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 gynaecologist. 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 practitioner. 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 professional 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 practitioners available to provide the service.
The conventional compromise allows an individual professional to act in accordance 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 services 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, however, 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 symptoms, reduced effectiveness of treatment, a longer period of anxiety or simply the inconvenience of waiting longer than anticipated), financial costs incurred or emotional distress caused by the referral. However, what seems reasonable to one person will not be reasonable to another. The ambiguous nature of claims for reasonableness 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 measure 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 interfere 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 conception. 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 responsibility, and a pharmacist seeking “clean hands” would only achieve this by not making the referral. 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 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 alternative pharmacist). This in turn may make the final outcome more or less foreseeable (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.
-  This may seem a particularly hard line when applied to those who find their values conflict withpractices that have been introduced after they joined the profession due perhaps to innovations inmedical treatment.
-  In Great Britain, the General Pharmaceutical Council requires pharmacists to ensure that referralsallow patients to access treatment within an appropriate timeframe that will not compromise contraceptive cover or effectiveness of the treatment. In making this assessment, pharmacists areadvised 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).
-  This is not necessarily a major concern for pharmacists. For instance, research has revealed moralpassivity among some pharmacists who do not always engage in moral decision-making evenwhen they regarded something as ethically problematic. Instead, pharmacists admitted shifting themoral responsibility to the prescribing doctor (Cooper et al. 2008b: 443).