Conscience clause, or when the doctor can refuse to perform a procedure

The development of medical knowledge has led to the emergence of procedures, which, although legal, can lead to moral opposition, including among the representatives of the medical professions. An example of such a procedure is abortion. Doctors and nurses have the right to refuse to participate if contrary to their conscience.

What do the regulations say?

In accordance with Polish law, only doctors, nurses, and midwives have the right to refuse to provide a service which is contrary to their conscience. The right to invoke the conscience clause cannot be used by representatives of other medical professions, e.g. pharmacists.

Refusal to perform a legal and medically-justified procedure, invoking the conscience clause, is not allowed in situations when delay in providing assistance could put the patient’s life at risk or cause serious damage to the patient’s health.

A doctor, nurse, or midwife, who refuses to perform a procedure contrary to their conscience, are obliged to inform the patient about the "actual possibility" of receiving this service in another centre.

What is the take of doctors and bioethicists on this?

Can a doctor refuse to take part in any treatment or examination? Opinions on this matter are divided.

According to the Supreme Medical Council, the right to refuse to participate in procedures contrary to one's conscience covers such procedures as performing, participating and assisting in, and diagnosing the patient’s health condition with the purpose of qualifying the patient for a procedure contrary to the doctor’s conscience. Using the conscience clause, the doctor should not influence the patient’s decision or impose his or her point of view on the patient. The refusal to provide a service should not be justified by medical arguments.

The Committee on Bioethics of the Polish Academy of Sciences is of the opinion that one can refuse to provide, or participate in providing, a healthcare service in person only when such an act directly encroaches on a value that should be protected unconditionally. This means that one cannot invoke the conscience clause to refuse e.g. to examine the patient, to consult the results of the patient's examinations and opinions of other doctors, to refer the patient to further specialist examinations, to issue a doctor's report or to make out a prescription for a medication, the use of which lies solely in the patient’s hands.

How does it function in practice?

Cases connected with the conscience clause are mostly connected with reproductive medicine – e.g. prenatal testing and abortion. It often happens that a doctor who refuses to perform a procedure does not inform the patient about where she can undergo it, thus in practice preventing her from access to it.

In its rulings against Poland, the European Court of Human Rights in Strasbourg has already called attention to the inappropriate use of the conscience clause – without effective instruments allowing patients to enforce their rights to receive a particular service.

Reproductive-rights organisations have the same observations. According to the Federation of Women and Family Planning, doctors are abusing this right, e.g. they are refusing to prescribe contraceptives and to provide essential information. Sometimes the conscience clause is invoked by pharmacists who refuse to fill a prescription despite having no right to do this.