Dr. Mary Neal:

I thank the members for the opportunity to address the joint committee on the vitally important subject of protection for professionals. I am an academic lawyer and my background is in healthcare law and ethics, and most of my research is in conscientious objection. In my view, protection for professionals has to be a priority for any legislature that is considering a change to the law in this area. I should add that like other witnesses, I am neutral on whether the law should change, and I will focus specifically on the challenge of accommodating conscientious objection.

Conscientious objection arises where a professional who would otherwise be expected to have a role in the assisted dying process needs to opt out of participating because to do so would violate their moral and professional integrity. So, what do professionals need to be protected from, and what is the best way of achieving that? In general, what they need to be protected from is sharing in moral responsibility for an outcome they believe to be seriously morally wrong. That is what a conscience clause is for. Precisely what actionsprofessionals will need to be protected from having to do will depend on the way that a system of assisted dying is set up, and what role it envisages for professionals. All attempts to change the law in the UK have envisaged a role for health professionals, and we see health professionals having involvement in the assisted dying process in those jurisdictions that already allow it.

Their roles might involve giving information; discussing treatment options and advising patients about those options; assessing patients’ eligibility for assisted dying; assessing their capacity to make requests for assisted dying; prescribing and-or supplying medication for use in ending life; providing other forms of care to patients who are progressing through the stages of an assisted dying process; and completing paperwork during and after the process. This is not an exhaustive list, as the healthcare professionals present will know well.

Protection for conscience needs to be meaningful and not partial. By this, I mean that a system in which professionals are given the right to opt out but only from so-called "direct" involvement or only on condition that they refer the patient on to another provider does not fulfil the main purpose of a conscience clause, namely, to protect the professional from sharing in moral responsibility. As soon as we reflect on the nature of moral responsibility, it becomes clear that those who facilitate or support outcomes, even in indirect ways and even by signposting, share in the responsibility for those outcomes. Forcing morally-conflicted professionals to be indirectly involved or to refer patients to other providers also risks creating nodes of anxiety, distress and delay in the process, and that can impact on patients. Therefore, partial protection is, in my view, the least desirable way of accommodating conscientious objection both for professionals and patients alike.

I believe the best way of protecting professionals is to design the system so that, insofar as possible, only those professionals who actively want to participate in the process need do so. Again, it is difficult to imagine how this might look without knowing what the whole system would look like, but it might involve an opt-in system across the country as a whole or creating specific positions or roles for providers of assisted dying. Legislating about where assisted dying is permitted to take place might be another way of designing much of the potential for objection out of the system. For example, in the UK, most abortion is provided by specialist clinics, where all employees are obviously willing to participate in providing it. Some abortions still need to be provided in hospitals, where conscientious objection can arise, but as far as the great majority of provision is concerned, conscientious objection is avoided. Similarly, much assisted dying could take place in specialist clinics, where conscientious objection is not an issue. Of course, some patients who want to access assisted dying might be in hospitals, hospices or their own homes and might be unable to travel to clinics. However, the existence of special clinics is one way that much of the scope for objections might be avoided. Using one of these strategies or a combination of them could be far preferable to an opt-out system in which the onus is on those who object because, just as with abortion, it is much better for both patients and professionals for the issue of conscientious objection not to arise and for the service to be provided smoothly by willing providers. A statutory protection for conscience, through statutory provision, would be needed to protect those who still might come in contact with the process.

There is evidence that levels of conscientious objection to assisted dying are relatively high within the health professions. They are much higher in the UK than levels of objection to abortion, for example. Legalisation has a normalising effect, so once a new law is in place, levels of objection might soften. However, it would be a mistake to rely on that. Therefore, any attempt to change the law should be informed by a large-scale survey of the relevant professions. It is encouraging to hear that is already being done with regard to GPs. It should be replicated across all of the relevant professions and those who might potentially be asked to be involved.