Conscientious objection by health
care workers– a legal perspective
By Anna Walsh, Lawyer
Aims
• Explain the basis for conscientious objection for HCW
• Examine relevant legislation and key terms for interpretation
• Clarify the law in NSW
• Discuss ‘participation’ scenarios for HCW and legal cases on point
• Consider employment issues
Conscientious objection
• International Covenant on Civil and Political Rights 1966
▫ “Every person has a right to freedom of thought, conscience, religion
and belief….”
• Areas of practice affecting HCW where conscientious objection
have been/could be raised:
▫ Abortion
▫ Euthanasia and assisted suicide
Abortion laws in Australia
• A fetus is not a “legal person”
• A legal fiction has been created in order to deal with the legal
status of the fetus
• All states and territories have their own laws on abortion
• It is not correct to say that abortion is available on demand in
Australia
• It is correct to say that abortion is lawful in all jurisdictions of
Australia in certain circumstances
Abortion laws
• Criminal statutes
▫ NSW, QLD, SA, TAS,
• Specific health legislation
▫ VIC, WA, ACT, NT, SA, TAS (presently a bill)
• Common law
▫ NSW, QLD
Available for Gestational Age
any reason? Limit
Obligation to Maternal Physical Fetal disability
consult with and Mental
a second
Health
doctor
No
Yes
No
No
No
Up to 20 weeks
No
No
No
Yes
No
No
No
No
No
After 20 weeks
Yes
Yes
Yes
Yes
Yes
No
TA
Yes, up to 24 After 24 weeks
weeks
No
No
Yes
Yes
No
NT
No
Up to 14 weeks
Yes
Yes
Yes
14 to 23 weeks
No
Yes
No
After 23 weeks
No
Only, if lifesaving No
treatment
NSW
ACT
WA
VIC
QLD
No
No
No
Yes
No
SA
No
No
Yes
Yes
Yes
Abortion: Victorian position
• A registered health practitioner has the right to conscientiously
object to giving advice, being asked to perform, direct, authorise
or supervise an abortion
• But there is as statutory obligation on the registered health
practitioner to refer a woman who requests advice on a proposed
abortion on to another practitioner who does not have a
conscientious objection to abortion (refer = provision of contact
details)
• Registered medical practitioners and registered nurses have a
statutory duty to assist in performing an abortion in an emergency
situation
• An emergency is defined as being where it is necessary to preserve
the life of the mother
Abortion: Tasmanian position
• Reproductive Health (Access to Terminations) Bill 2013 - any health care
practitioner has the right to conscientiously object to participating in abortion
• But there is a statutory obligation on the registered health practitioner to
refer a woman who requests advice on a proposed abortion on to another
practitioner who does not have a conscientious objection to abortion (refer =
provision of contact details)
• Registered medical practitioners and registered nurses have a statutory duty
to assist in performing an abortion in an emergency situation
• An emergency situation is described as where it is to save the life or prevent
serious physical injury of the mother
• Penalties apply – professional sanctions for HCP and fines for counsellors
What does it mean to ‘participate’?
• Triaging an emergency that leads to an abortion?
• Dispensing medications used for abortion?
• Performing radiological investigations or tests used in performing an
abortion?
• Conveying patient undergoing an abortion to theatre?
• Disposing of the fetus and cleaning the instruments used in abortion?
• Paperwork in admitting patients ?
• Co-ordinating staff and preparing rosters for HCW who perform/assist in
abortions?
Doogan and Wood v NHS Greater Glasgow
and Clyde Health Board 2013
• Midwives employed in hospital, labour ward co-ordinators
• Previously expressed CO to participating in abortion
• Labour ward started to admit patients for abortion
• Lodged a grievance with their employer – grievance rejected
• Appeal to Board – appeal rejected
Doogan and Wood v NHS Greater Glasgow
and Clyde Health Board 2013
• Went to Court – case rejected at first instance
▫ “Nothing they have to do as part of their duties terminates a
woman’s pregnancy..
▫ They are sufficiently removed from direct involvement as, it
seems to me, to afford appropriate respect for an
accommodation of their beliefs.”
Doogan and Wood v NHS Greater Glasgow
and Clyde Health Board 2013
• Appeal lodged with Court of Appeal – won
▫ “In our view the right of conscientious objection extends not
only to the actual medical or surgical termination but to the
whole process of treatment given for that purpose….
▫ The right is given because it is recognised that the process of
abortion is felt by many people to be morally repugnant.”
Janaway v Salford Health Authority 1988 UK
• Doctor’s receptionist and secretary
• Asked to type a letter of referral for an appointment with
consultant for purpose of abortion
• Plaintiff refused to type on basis that she was against abortion and
claimed she was entitled to refuse based on conscientious
objection as per section 4(1) Abortion Act 1967 UK
• Personnel officer refused to acknowledge objection and sought
• Plaintiff refused unless afforded protection – sacked
Janaway v Salford Health Authority 1988 UK
• P appealed to the Health Authority Appeal Tribunal – dismissed
• Applied for judicial review – dismissed
• Court of Appeal - affirmed dismissal
• House of Lords – reviewed meaning of word “participate”
▫ “On proper construction the word participate in section 4(1) … is its
ordinary meaning referred to actually taking part in treatment
administered in a hospital or other approved place”
Possible outcomes
- If someone dies or is injured by an alleged failure of HCW to
participate in an abortion where they conscientiously object …
• Coronial Inquest
• Criminal charges
• Breach of duty of care
Employment issues
• Australian Human Rights Commission and Fair Work Commission’s
anti-discrimination jurisdictions are attribute specific
• Question: Is conscientious objection an attribute?
• Relief from religious discrimination is recognised in legislation
• If you are dismissed because you exercised your conscientious
objection, the issue will be whether you contravened a lawful and
reasonable direction of your employer – a vexed issue
Legal steps to take
• See a lawyer specialising in employment law
• Or speak with your union representative (if member) to get some
initial legal advice
• The lawyer will take your statement, review your contract of
employment, collate and review any documentary evidence and
advise you on your options.
• You will usually be charged for this work.
• The lawyer may be able to negotiate with your employer or provide
other options but this will depend on the circumstances.