What are professional standards?

It is uncontroversial that to be a professional means, among other things, to be bound by obligations defined by professional standards. However, there is disagreement with regard to what falls within professional standards of healthcare and with regard to the appropriate procedure to determine them.

We can identify three possible ways to establish professional obligations. They are based on the contractual nature of professional roles and on standards of medical ethics. By entering the healthcare profession—exactly like any other profession—an individual enters into a contractual relationship with both society and the relevant professional bodies. The terms of the contract define professional standards and obligations. The following three models often overlap. This might make it difficult to see that they are conceptually different. However, their conceptual difference becomes apparent in cases of conflict, as might happen with certain restrictions on access to abortion.

Best Medical Interest and Professional Organisation models: jointly necessary and sufficient for professional obligations?

Ideally, Professional Organisation model and Best Medical Interest model would overlap, in the sense that ideally we would want professional codes of practice to be informed by the best medical ethics standards. In fact, they often do overlap. However, because they are conceptually distinct, they raise the question of whether they are jointly necessary and sufficient for grounding professional obligations, or whether either is by itself necessary and sufficient.

The Best Medical Interest model, if adopted, would be sufficient for the professional permissibility of breaking the law in cases in which there is reasonable disagreement on the ethical aspects of a certain procedure that are relevant to medical ethics (eg, if the fetus has the moral status of a patient). This might or might not be all-things-considered ethical and might legitimately subject the professional to legal sanctions, as we shall discuss shortly. It is also sufficient for a professional obligation in cases in which there is no reasonable disagreement about the morality of the procedure in question from the point of view of medical ethics (say, providing healthcare to illegal immigrants). In principle, it is also sufficient to justify a professional obligation to act in the best medical interest of the patient.

In practice, however, we see a danger in relying exclusively on the Best Medical Interest model as it gives individual practitioners significant discretionary power in deciding what counts as in the patient’s best medical interest, as the example of sterilisation mentioned above suggests.

Embedding the ethical principles in codes of practice would offer more solid grounds for professional obligations, as codes of practices can be subjected to public scrutiny and revisions in light or better arguments and evidence. The Professional Organisation model informed by the Best Medical Interest model, that is, professional codes informed by good medical ethics, provide a more objective criterion for clinical decision-making that is less susceptible to arbitrary use during clinical encounters.

In the case of abortion, at the moment, most non-sectarian codes of practice consider it consistent with good medical practice and with medical ethics. Moreover, we have seen that it is at least reasonable to assume that foetuses lack the kind of moral status to warrant their status as patient. This means that, at the moment, the Professional Organisation model informed by the Best Medical Interest model implies that it is at least professionally permissible for a healthcare professional to provide, in certain circumstances, illegal abortions. All of this might well be questioned, of course, and should constantly be kept under scrutiny. People who disagree with it should be free to lobby and persuade relevant professional bodies to change this position. If this stance is found wrong, professional guidelines should change to reflect the fact that a fetus has the full status of a patient when a woman presents herself to request an abortion. In that case, abortion might well have to be ruled out as a matter of professional obligation, regardless of whether it is permitted or prohibited as a legal matter. However, as things stand now, professional organisations’ codes recognise the woman as the primary patient, which is consistent with a plausible understanding of the Best Medical Interest standard of professional obligations based on reasonable, defensible ethical arguments.

One problem here is that there seem to be quite a few cases in which pursuing the best medical interest of a patient would require contravening other ethical or societal goals or other non-medical interests of the patient. One example is male circumcision, which is often undergone for cultural reasons and might be consistent with an ethical principle of respect for cultural or religious traditions. Male circumcision is legal in most countries. However, it is not necessarily in a patient’s best medical interest. Similarly, the prohibition of abortion might reflect the cultural values of a certain community and be part of its tradition. This type of cases is a good reminder of how, consistently with the distinction we drew at the beginning, ethics is broader than just medical ethics. Values of the latter might be in tension with the former. The healthcare profession is not concerned with the promotion of cultural traditions, but one might defend the ethical value of promoting cultural traditions in the political arena, outside of the healthcare context. These are cases of genuine conflict between strictly professional and broadly ethical demands. Here, we are only concerned with what one ought to do as a healthcare professional, that is pursue patients’ best medical interest, at least when it is consistent with other professional and ethical obligations (say, fair allocation of resources). It might well be that sometimes professional obligations require professionals to act against broader ethical values, in the same way as they sometimes require to act against the law.

Acts, omissions and professional settings

As Lisa Harris pointed out 10 years before the reversal of Roe v Wade, while conscientious objection is typically understood in terms of refusal, the provision of abortion care can also be a matter of conscience. The question arises as to how conscientious commitment compares, ethically, to conscientious refusal to provision of abortion services. After all, we are in both cases talking of a conscientious objection to what would otherwise be a legal or professional expectation. It is important to focus on this aspect of abortion provision, especially where legal access to abortion is constrained, because, as Harris says,

The persistent failure to recognize abortion provision as “conscientious” has resulted in laws that do not protect caregivers who are compelled by conscience to provide abortion services, contributes to the ongoing stigmatization of abortion providers, and leaves theoretical and practical blind spots in bioethics with respect to positive claims of conscience23

The reversal of Roe v Wade has created a situation where positive claims of conscience could be more frequently put forward. As sociologist Carole Joffe pointed out, especially when abortion was illegal, abortion provision often was a matter of conscience. It was grounded in doctors’ deeply held moral beliefs that ‘abortion provision honoured “the dignity of humanity” and was the right—even righteous—thing to do’.24 The reversal of Roe v Wade might make these reasons of conscience salient again in a doctor’s decision whether to provide an illegal abortion. Elizabeth Sepper and Dov Fox have argued that if conscience has to be taken seriously within the law, conscientious commitment should be protected at least in legislations that protect negative claims in the attempt to balance interests of institutions, professionals and patients. This means, for example, that practitioners should enjoy legal protection when they operate within institutions that do not provide a certain service (like abortion), but conscientiously decide to provide it.25 26 These authors are concerned with legal accommodation of positive claims of conscience. However, at the moment positive claims do not enjoy legal protection. This is why here we are concerned with how professional organisations should regulate the matter in their professional guidelines and codes of practice, given the lack of legal protection.

If practitioners have a professional obligation to provide in certain cases illegal abortion or at least they are professionally justified in doing so, then professionals with a conscientious commitment to abortion provision would find adequate ethical or professional reasons to back their conscientious commitments. The approach of professional organisations should reflect this ethical framework.

The debate on conscientious objection in healthcare has mostly focused on negative claims of conscience, i.e. conscientious refusal.16 27–32 Discussion of positive claims of conscience, or conscientious commitment, is less frequent and less developed. It has typically focused on either the possible legal accommodation of positive claims25 26 or on broader ethical issues around the ethical relevance of the act-omission distinction.23 33–39 As we said, here we are focused primarily on how professional organisations should treat positive claims of conscience to provide illegal abortion. However, to address this question, it is necessary first to look at what role the act-omission distinction plays in grounding professional obligations.

Some appeal to the moral relevance of the act-omission distinction to claim that negative claims of conscience are easier to ethically justify than positive claims.38 We can call this the ‘asymmetry thesis’. Others defend the asymmetry thesis by appealing to the moral asymmetry between positive and negative rights, rather than positive or negative claims. According to this view, positive claims of conscience would often need to be treated as positive rights. That is, they would require institutions to actively take steps and make special arrangements to ensure that procedures that are otherwise prohibited can be carried out by the doctor with the positive claim. In contrast, negative claims of conscience would give rise to a negative right, that is, they would not require actively putting in place any special arrangement to be accommodated.² ,34

There are two ways to respond to these claims.

Starting from the latter, it is simply not true that the right that negative claims would give rise to is negative in the sense just explained. If an institution is committed to providing abortion, or is required to provide abortion as a condition for receiving state funding, then accommodating conscientious refusal might require institutions to take action and use resources to ensure that abortion services are available (eg, by hiring more staff willing to provide abortions).35

With regard to the former claim, the relevance of the distinction between negative and positive claims of conscience within the healthcare profession can be questioned.35–37 The asymmetry between negative and positive claims does not apply to the healthcare context in the same way as it applies to other contexts. Normally, ethical values and principles ground professional standards that are less sensitive to ordinary moral distinctions, or indeed not sensitive at all. Rather than transferring ordinary moral distinction into professional settings, we normally consider professional settings as particular areas where ordinary moral distinctions are replaced by professional standards. For example, professionals like firefighters or police officers are not held accountable on the basis of the act-omission distinction in the same way as most of us are in our everyday life. They have professional obligations to take action for the sake of people in danger when most of us do not have corresponding ethical obligations to do the same.

Indeed, in the case of abortion, according to the Best Medical Interest model, the claims of conscientious commitment might even be stronger than claims of conscientious refusal because in the case of commitment doctors are responding to the autonomous request of a being with clear interests. This is not the case when considering conscientious objection to the provision of abortion, given the uncertainty and reasonable disagreement around the moral status and the interests of the fetus. Thus, the claims of refusers seem weaker. One could plausibly argue that conscientious refusal could be granted without it resulting in significantly suboptimal care for women. However, the chances that objections result in suboptimal care seem high. In fact, there is significant evidence suggesting that conscientious objection does create significant risks of harm to women.40 41 Besides, unequal distribution of the burdens of abortion provision among practitioners might create imbalances, resulting in suboptimal care, for example, if there are few doctors that have to provide all the abortions (which also raises an issue around fair working conditions, which we will not discuss here).

Now, even assuming that the act omission-distinction does not play any relevant role in the comparison of conscientious refusal and conscientious commitment in healthcare delivery, there are other factors to consider when asking how doctors should or may handle requests for illegal abortions. We need to distinguish between professional obligations/permissibility, ethical obligations/permissibility and legal protections of conscientious abortion provision. Let us consider all these in order.

Positive claim of conscience as a professional obligation/professionally permissible?

If we adopt the first criterion and we think that healthcare professionals have a professional obligation to provide all and only the services for which their patients are legally eligible, it follows that doctors have also a professional (and not just a legal) obligation not to provide illegal abortions, even when they think abortion is consistent with good medical practice as defined by professional standards of relevant medical organisations. In this view, the reversal of Roe v Wade means that healthcare professionals operating in states that legally ban abortion have a professional obligation not to provide it to women who request it, even when they think abortion would otherwise meet professional standards. Indeed, in some countries including Nicaragua, Chile, El Salvador and Malta, even when women’s life is at risk. This view is implausible, as the case of Mrs Halappanavar demonstrates. Even if illegal, it seems plausible that healthcare professionals had at the very least professional ethical licence to save Mrs Halappanavar’s life by terminating a pregnancy that would anyway have naturally ended with the death of the fetus.

If we instead adopt the Professional Organisation model informed by the Best Medical Interest model, things get more complicated. If abortion provision is consistent with good medical practice as determined by relevant professional bodies and consistent with the promotion of a patient’s best medical interest, then doctors might well have a professional obligation to provide it. That is, it might well be the case that healthcare professionals sometimes have professional obligations to break the law—after all, this was the case with doctors practising in Nazi Germany who were required by law to deny Jews appropriate medical care. Or, to put it differently, it might well be that respecting the law would sometimes require them to fall short of meeting their professional obligations. However, given the uncertainty and reasonable disagreement around the moral status of foetuses and the fetus’ interest, it is plausible to say that the combined model grounds at least the professional permissibility of providing, in certain cases, illegal abortions.

Positive claims of conscience as an ethical obligation/ethically permissible?

Suppose we accept that healthcare professionals do not always have a professional obligation to obey the law. Instead, they have a professional obligation to stick to the standards of good medical care, as determined by good medical ethics and the relevant professional codes. The next question is whether they also have an all-things-considered ethical obligation to follow the law or to follow professional obligations. Arguably, breaking the law for the sake of sticking to professional obligations might be too demanding to be considered an ethical obligation, at least if we accept that supererogatory acts—while they might be praiseworthy—cannot be a matter of ethical obligation. Fulfilling a professional obligation might land doctors in jail. It is, therefore, plausible to say that doctors do not necessarily have an ethical obligation to provide illegal abortions, even assuming they have a professional obligation to do so. Besides, most obviously, even granting that there is a professional obligation to break the law at times, many would say that the ethical obligation to abide by the law is stronger independently of considerations of the personal costs that breaking the law implies, which leads to the next question: Could it at least be ethically permissible for doctors to provide abortions in such cases?

That acting against the law is (at least) ethically permissible is, needless to say, a problematic claim. We can safely assume, at least in liberal democratic societies, that there is a prima facie obligation to respect the law. But what if a law is unethical, as was arguably the case in Ireland where the preventable, unnecessary death of Mrs Halappanavar was the consequence of doctors simply following the law? It seems quite plausible to claim that to act against an unethical law is, at times, ethically permissible. Of course, this raises the question of when abortion prohibition is all-things considered unethical, which we are here happy to leave open as it might include considerations that extend beyond strictly medical ethics.

Should positive claims of conscience be granted some legal protection?

Typically, conscience clauses allowing conscientious refusal in laws that legalise or decriminalise abortion do not undermine the legal availability of the procedure—although they could undermine the availability in practice.30 Thus, conscientious refusal to provide abortion can be legally consistent with the legalisation of abortion.

However, in the case of positive claims of conscience, the distinction has more problematic implications. Conscience clauses allowing abortion provision in laws that prohibit abortion would defeat the purpose of the legal prohibition. Quite simply, they would entail that what is prohibited could sometimes be done, that is, that it is in fact not prohibited.

To be sure, there have been cases where police and prosecutors had discretionary powers and chose not to prosecute offenders, when they believed that the harm caused by prosecution and sentencing would be greater than the harm of the offence that was committed. For example, for many years in the Netherlands cannabis use was illegal, but offenders were not prosecuted precisely for this reason. Prosecutorial charging guidelines taking this into account in the case of enforcement of restrictive abortion laws might be a realistic possibility in some communities. However, other societies are stricter in the way they enforce laws, in the sense that the damage of law enforcement is not taken into consideration or is considered not to outweigh the benefits of law enforcement.

The application of the law often takes into account mitigating circumstances for those that act against it. This is where there is some scope for offering at least some protection to doctors who provide abortion consistently with professional organisations’ guidelines and in the best medical interest of women.

Some have suggested that a legal system based on solid ethical principles would give more protection to positive claims of conscience and less protection to negative claims of conscience. This is because, among other reasons, positive claims honour patients’ requests and conscientious refusals override them.26 Our arguments concern professional obligations and guidelines and not legal reforms. We are, therefore, not committing to any such claim here. However, our argument on the importance of promoting patients’ best medical interest provides further support to these legal arguments.