Professor Wade’s article is an excellent overview of how to apply best interests to decision making in prolonged Disorders of Consciousness (PDoC) and should be mandatory reading for all health professionals caring for individuals with brain injuries1. However it fails, as does the Royal College of Physicians PDoC guidance, to adequately emphasise the vastly different balances when comparing withdrawal or withholding of clinically assisted artificial nutrition and hydration versus far more invasive and burdensome treatments.

A significant proportion of patients in a PDOC are only alive because they were subjected to the very invasive life sustaining treatment that modern medicine can inflict. The existence of the clinical entity of PDoC could arguably be seen as a failure of prognostication and best interests decisions during the acute phase of a catastrophic brain injury; continuing invasive treatment that is arguably either ‘futile’, not in the patients best interests or be so invasive and prolonged to be disproportionate to the likely outcome2. However prognostication can be a difficult and uncertain at this stage.

In our institution we admit up to 70 patients per annum who have sustained an out of hospital cardiac arrest and the majority of these survive long enough to need to assessment of neurological prognosis. At 72 hours, if the patient remain neurologically obtunded, we use multi-modal assessment to assess the likely outcome according to international guidelines3.

If a poor outcome (death or severe neurological disability including PDoC) is deemed likely or very likely best interests meetings are held. We then, after appropriate consultation, consider withdrawal of life sustaining treatment which, at this stage, is mainly in the form of mechanical ventilation.

Often families take some time to become reconciled to the sad reality that modern medicine can not return all patients to a life they would wish for. However when there is a prolonged disagreement as to whether Intensive Care is indeed in the patients best interests the patient has entered the realms of a PDoC.

Recent CoP proceedings4 in such a case led to application by the neuro-rehabilitation and legal fraternity, wrongly in my opinion, of the Royal College of Physicians PDoC guidelines to a patient on Intensive Care. Is it ever in a patients best interests, unless previously expressly stated, to subject them to many months of Intensive Care when the assessed best outcome by experts is a PDoC? Is this proportionate? Is this appropriate use of finite healthcare resources?

As seems to be ever common, arguments then ensue about honing in on the exact diagnosis between MCS and VS using assessments that are not necessarily applicable to a patient in Intensive Care. To an Intensive Care clinician these discussions are irrelevant especially when the patients physical status is so fragile it is unlikely to support any potential recovery. Sadly, rigid application of the guidelines can lead to an inability to look holistically at the whole individual and focus solely on the issue of the brain and PDoC ignoring how physical health impacts on the overall prognosis.

It would seem disproportionate to need the same certainty of diagnosis and prognosis, i.e. many months of PDoC diagnostic assessment, to withdraw highly invasive intensive care compared with withdrawal of CANH in a ‘stable’ patient. Sadly, such subtleties are not explicit in the current PDoC guidelines sometimes resulting in these very authoritative guidelines over-ruling common sense and holistic care.

1. Wade DT. Using best interests meetings for people in a prolonged disorder of consciousness to improve clinical and ethical management. J Med Ethics. 2017 Sep 14;medethics – 2017–104244.
2. Kitzinger J, Kitzinger C. The ‘window of opportunity’ for death after severe brain injury: family experiences. Sociol Health Illn. 2013 Sep 1;35(7):1095–112.
3. Sandroni C, Cariou A, Cavallaro F, Cronberg T, Friberg H, Hoedemaekers C, et al. Prognostication in comatose survivors of cardiac arrest: An advisory statement from the European Resuscitation Council and the European Society of. Intensive Care Med. 2014 Dec 1;40(12):1816–31.
4. Abertawe Bro Morgannwg University LHB v RY and CP [2017] EWCOP 2.

Authors Montero and Villarroel discuss problems that might arise from “conscientious objection” (CO) to the new law in Chile that legalized abortion in cases of life endangerment of the woman, fatal fetal abnormality, and rape. (“A critical review of conscientious objection and decriminalisation of abortion in Chile”, Jan 6). The law provides the “right” to exercise CO, with the only caveat that health institutions are required to immediately refer patients to non-objecting practitioners. We share the authors’ concerns that conscientious objection may prove be quite widespread in Chile with the new law. In fact, we argue it will create serious, widespread problems for access to safe and legal abortion, despite the referral requirement.

Of course, in a Catholic-dominated country like Chile with a total abortion ban, the new law represents a major advance, and it will undoubtedly help many women. We appreciate the challenges and hard work to get the law passed and acknowledge it may have been difficult to do so without CO as a political compromise. Unfortunately, last-minute lobbying by Catholic hospitals resulted in a court’s expansion of the CO clause in the law, giving the “right” of CO to not just doctors, but also support workers and even institutions (when only individuals can have a conscience). This law will be very difficult to reverse and women will suffer the consequences.[1]

The authors rightly recognize the difference between conscientious objection in health care, and civil disobedience. Yes, Chilean health care professionals who object to abortion and the new abortion law have been using the conscientious objection debate as a political weapon to undermine and repeal the new democratically-decided law. They are being disobedient, not conscientious, because they are prioritizing their personal religious beliefs over women’s right to heath and life. CO is “dishonourable disobedience.”[2] In contrast, other doctors exercise a conscientious commitment to their patients’ well-being and safety by providing abortion when necessary, especially in a stigmatized or legally restricted environment such as Chile.

However, the authors assert without any justification that if CO involves acting according to conscience, then both CO and conscientious commitment “merit identical regard” and one does not prevail over the other. We strongly disagree. CO in reproductive health care is a misnomer because it is not “conscientious” – it is the unethical abuse and abandonment of medical ethics and the duty of care, while conscientious commitment fully respects medical ethics and patients’ right to health care. CO exploits an imbalance of power between doctor and patient, with doctors enjoying a chosen and privileged position of trust and a state monopoly over health care, while vulnerable patients bear the full burden of CO. This is the opposite of CO in the military, where ordinary citizens are drafted into service against their will and must accept punishment or alternate service if they object.

The authors assume that CO in health care is a right, albeit one that must be limited. However, evidence-based arguments indicate that CO in health care is inappropriate and should be prohibited, in the same way as for refusals based on discriminatory racist or sexist beliefs.[2] Currently, Sweden, Finland, and Iceland do not allow a refusal to treat in reproductive health care,[3] and all countries should follow their example if they take evidence-based medicine and women’s human rights seriously.

It may be difficult to overcome the entrenched tradition of accepting CO, especially in Catholic-dominated countries like Chile, but the answer is not to accommodate CO as a right and regulate it – instead, it should be denounced as a violation of patient rights, with steps taken to reduce it as far as possible until it can be effectively abolished.

Some writers distinguish between what might be called ‘genuine CO’ and ‘obstructionist CO’[4] – but this distinction is impossible to make in an objective way. In fact, the very nature of CO is to be obstructionist because most of those who invoke it want to stop women from having abortions. As we have concluded elsewhere:

“Personal conscientious objection to a treatment that a patient requests has no valid place in health care. Treatment decisions by HCPs [health care professionals] must be patient-directed, not self-directed, and must be based on evidence, medical ethics, and professional obligations. If the treatment is legal, within the HCP’s qualifications, requested by a mentally healthy patient, and primarily beneficial (which abortion is), there is simply no excuse to refuse.”

Montero and Villarroel recommend that the Chilean government regulate CO to prevent “misuse.” But they offer no recommendations for how to do this. As they acknowledge, a significant number of hospitals and doctors will never obey any law allowing abortion, so we can safely assume that these objectors will never obey any regulations on CO either. It is naïve to call for CO regulation when existing CO regulations around the world are widely ignored and enforcement is almost non-existent.[2] In particular, it is well known that many anti-abortion doctors will refuse to make referrals because they feel this makes them “complicit”.[5] They are rarely if ever held to account for such refusals.

If CO regulations sometimes appear to “work”, it is only in a handful of countries that impose strict limits on it, including Norway, England, and Portugal. But Norway and England both have very low levels of objectors anyway, plus England side-steps the CO problem by shifting most abortion care to private clinics.[6] As for Portugal, no rigorous data exist on the prevalence of objection, few objectors are aware of their legal reporting duties under the law, and it is unknown if hospitals and objectors are obeying the law or what actually happens to women.[7]

The authors point out that the Chilean health care system is beset by major shortcomings, with the public sector experiencing “runaway demand, inadequate outpatient services, and a shortage of facilities and hospital beds.” In such an environment, converting the 100,000 estimated illegal abortions a year into safe, legal procedures will undoubtedly strain resources and run up against significant abortion stigma and widespread denial of services.

Historical experience and evidence from other countries, especially Catholic countries like Italy,[8] shows that allowing CO will seriously undermine Chile’s new abortion law and prevent Chilean women from accessing the service. Because that is the political intent of CO. It is a religiously-motivated boycott of a democratically-decided law. It is a refusal to treat based on personal beliefs, something that should not be allowed in any area of medicine – the fundamental purpose of which is to provide care, not refuse it. Chile will not succeed in regulating CO for the simple reason that you cannot “regulate” the exercise of religious beliefs with rational arguments. Similarly, it is impossible to avoid the “misuse” of CO, as CO is a misuse in itself.

Instead, governments should implement strong educational, enforcement, and disciplinary measures against the exercise of CO. Otherwise, not much will change. If the regulation of CO is to work, it must have as its goal the eventual elimination of CO. Some examples of measures that would reduce and eliminate the exercise of CO include:

• Require all public hospitals to provide abortions (as in Portugal, Norway, and France).
• Inform medical students applying to the Obstetrics/Gynecology specialty that abortion is a mandatory part of the curriculum and an expected part of their practice.
• Provide compulsory training in medical schools in abortion techniques for all Ob/Gyn students, and in contraception provision for all family medicine students.
• Include the requirement to participate in abortion in job descriptions at the point of hiring.
• Require existing objectors to take continuing education courses or values clarification workshops on the need for reproductive health care services, why women request abortions, the negative effects of CO on patients, and their fiduciary duty to patients. Also, expose them to patients needing abortion.
• Assist remaining objectors to move to other disciplines or areas where their objection won’t be a problem.
• Impose disincentives against any remaining objectors, such as: require them to register and file reports for each refusal, monitor and discipline them, hold objectors financially liable for harms done to patients, prohibit existing objectors from working alone, allow employers to prioritize hiring of non-objecting physicians, and pay objecting physicians less.

The point is that CO regulations should be designed to actively discourage and eliminate CO, with the understanding that CO is unethical and inappropriate in health care. Any law or policy that implies or recognizes a right to CO, while assuming that objectors will follow any prescribed limits without oversight, is bound to fail and will hurt women. We hope that steps can be taken in Chile to minimize these inevitable harms to women’s health and violations of their rights – such as encouraging pro-choice doctors to make a conscientious commitment to provide life-saving abortion care to women.

References

[1] Fiala C, Arthur JH. Victims of CO. 2017. http://www.conscientious-objection.info/category/victims-of-co/

[2] Fiala C, Arthur JH. ‘Dishonourable Disobedience’: Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection. Woman – Psychosomatic Gynaecology and Obstetrics 2014; 1:12-23 http://www.sciencedirect.com/science/article/pii/S2213560X14000034

[3] Fiala C, Gemzell Danielsson K, Heikinheimo O, Guðmundsson JA, and Arthur J. Yes We Can! Successful Examples of Disallowing ‘Conscientious Objection’ in Reproductive Healthcare. European Journal of Contraception and Reproductive Healthcare. 2016 pp 201-206. http://www.conscientious-objection.info/wp-content/uploads/2016/10/Yes-w...

[4] Fiala C, Arthur JH. There is no defence for ‘Conscientious objection’ in reproductive healthcare. European Journal of Obstetrics & Gynecology and Reproductive Biology. 2017; 216:254-258 http://www.sciencedirect.com/science/article/pii/S0301211517303573

[5] Loriggio P. Ontario doctors who object to treatment on moral or religious grounds must give referral: court. Canadian Press. Jan 31, 2018. https://www.thestar.com/news/canada/2018/01/31/ontario-doctors-who-objec...

[6] Fiala C, Arthur JH. Letter to the Editor: Refusal to Treat Patients Does Not Work in Any Country—Even If Misleadingly Labelled “Conscientious Objection”. Sep 6, 2017. Health and Human Rights Journal. https://www.hhrjournal.org/2017/09/letter-to-the-editor-refusal-to-treat...

[7] Chavkin W, Swerdlow L, Fifield J. Regulation of Conscientious Objection to Abortion: An International Comparative Multiple-Case Study. Health and Human Rights Journal. 2017 Jun;19(1):55-68. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5473038/

[8] Minerva F. Conscientious objection in Italy. J Med Ethics. 2015 Feb;41(2):170-3. https://www.ncbi.nlm.nih.gov/pubmed/24861043

Abstract
Jason Brennan presents a justification for mandatory vaccination policy from a libertarian perspective. I reevaluate Brennan’s argument, focusing on the applicability and potential limit of the clean hands principle he proposed. I argue that the clean hands principle cannot tell us how to weight the degrees of risk of different collectively harmful activities; therefore, we could not distinguish the relative significance of coercive interventions that aim at stopping different kinds of collectively harmful activities. Using secondhand smoke prevention as an analogous policy example, I illustrate that many behaviors that suffice the five conditions could be qualified as collectively harmful activities. These activities are hence subject to coercive policies that are justified by the clean hands principle, including those obviously infringe individual rights and civil liberties and contradict with libertarianism. For libertarians, this implication of the clean hands principle might not be too comfortable to accept.

Main Text
Using David Gauthier’s strategy, Jason Brennan demonstrates that even starting with a theory “with strongly individualist and antigovernment premises” such as libertarianism, mandatory vaccination is justifiable (p.37).1 Drawing on one of his own works, Brennan argues that the clean hands principle requires a person not to participate in collectively harmful activities, and that libertarians should accept governments’ coercive interventions to enforce this requirement.2 Since the behavior of anti-vaxxers is a collective harmful activity, these anti-vaxxers “are imposing unacceptable and unjust risks on others.” Therefore, the governments could rightly coerce them to be vaccinated. Even libertarians should be comfortable with this policy recommendation. However, as I will show, there are several issues to be considered, especially for libertarians, if readers were to accept this conclusion.
For the purpose of discussion, let us first recall the five conditions that constitute a collectively harmful activity. When a group of individuals 1. actively expose “themselves to potentially dangerous diseases,” and 2. actively do “things that have a high likelihood of spreading these diseases to others,” and 3. actively choose “not to take steps to reduce the risks they are imposing,” and 4. “are not epistemically justified in 3” for “they lack grounds for refusing to take precautions,” and 5. impose on others the risk that “cannot be justified as part of an equitable social system of risk-taking as it provides no advantage to others,” then this group of individuals perform a collectively harmful activity (p.41).1 Brennan suggests that under the circumstances that these five conditions present, governments’ coercive intervention to forbid individuals from participating in such activity is justifiable.
The major issue is that the clean hands principle cannot tell us how to weight the degrees of risk of different collectively harmful activities; therefore, we could not distinguish the relative significance of coercive interventions that aim at stopping different collectively harmful activities. In the field of public health, many behaviors could be qualified as collectively harmful activities and hence be subject to the clean hands principle. In other words, many governments’ coercive interventions aim at these unhealthy behaviors could be easily justified even they might contradict with libertarianism.
Take a common intervention policy – secondhand smoke prevention – for example. Is emission of tobacco smoke in places that expose others to secondhand smoke a collectively harmful activity done by smokers? Are these smokers imposing unacceptable and unjust risks on others? These smokers indeed expose themselves to potentially dangerous diseases (suppose we recognize the scientific evidence that exposure to tobacco smoke causes),3 such as lung cancer. Although they cannot literally spread lung cancer, they indeed have a high likelihood to spread secondhand smoke that causes lung cancer to others. When they emit the smoke in places where others present, they indeed actively choose not to take steps to reduce the risks they are imposing. So far, the smokers’ behavior has sufficed conditions 1 to 3. As for condition 4, considering the dominant propaganda on the health risks of tobacco, we could reasonably presume that most smokers already known the knowledge and hence lack grounds for refusing to take precautions (such as step to another place that on one present there). Lastly, those exposed to secondhand smoke are certainly not a part of an equitable social system of risk-taking, because there’s obviously no advantage could be obtained from inhaling secondhand smoke. Consequently, we establish an argument that emission of tobacco smoke to others is a collectively harmful activity done by smokers.
Suppose the analogy is right, then we could confidently accept a policy proposal that governments should forbids every smoking behavior that might cause secondhand smoke. Actually, this is what people in public health have already done. In the 2003-adopted World Health Organization Framework Convention on Tobacco Control (FCTC), Article 8 “Protection from exposure to tobacco smoke” requires parties to protect people “from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places” through legislative efforts.4 In practice, many countries have implemented similar laws and regulations to forbid secondhand smoke in public places. Furthermore, in our inference of the five conditions above, they have nothing to do with whether the conditions present in a public or a private place. We could actually argue that secondhand smoke should be forbidden not only in public but also in private places. Therefore, we should accept a coercive intervention that regulate smoking behavior in even the most private and intimate places, even if we were libertarians. This conclusion obviously infringes many individual rights and civil liberties that libertarians believe should be protected against governments’ coercion.
Some might argue that smokers’ spreading secondhand smoke is different from anti-vaxxers’ spreading infectious microbes, because infectious microbes are much more dangerous and fatal than tobacco smoke. However, I maintain that it is not so much a disanalogy; rather, it is just a matter of different degrees of risk. Different microbes cause different diseases and health outcomes to individuals. Some have longer latent, some have higher transmission rate, some cause higher mortality, some cause irreversible disability, and some are fatal only if the patient is exposed twice. The risks each microbe could cause are different. Suppose we consider secondhand smoke as a kind of microbe that have a long latent and cause fatal (and often painful and suffering in terms of life quality and finance) outcome – lung cancer, then it is no different from the others. What really different here is the degree of risk, depending on the measurement. The point is that the clean hands principle does not take the degree of risk into consideration. As long as the harms are caused by a collectively harmful activity, it is subject to governments’ coercive interventions.
Note that the degree of risk I refer here is different from the assumption (C) of a valid intervention, which assumes that the target of a intervention will cause serious illnesses (therefore the intervention can protect against them) (p.37).1 This implies that as long as a collectively harmful activity would cause serious enough illnesses (let us tentatively neglect the definition of ‘enough’ and just suppose that lung cancer is a serious one), it could be the target of the intervention (secondhand smoke prevention policy), regardless of its degree of risk. Therefore, accompanied with the (A) effectiveness and (B) harmlessness assumptions, the intervention is valid and could be defended (p.37).1
I take secondhand smoke prevention policy as an example to illustrate the applicability of the clean hands principle. From those related to individual-level life style (unhealthy behaviors) to community-level social determinants of health,5 in the field of public health, many more analogous examples could be easily proposed, and many coercive intervention policies could be defended accordingly. On this ground, it seems that the most radical public health advocates could march together with libertarians. I do not suggest that I am one of the public health advocates, but I figure that they would gratefully appreciate this conclusion, and I suspect that libertarians would be comfortable with it. Therefore, out of friendly intentions, I urge my libertarian peers to reconsider Brennan’s proposal.

References
1. Brennan J. A libertarian case for mandatory vaccination. Journal of Medical Ethics 2018;44(1):37-43. doi: 10.1136/medethics-2016-103486
2. Brennan J. The ethics of voting. Princeton: Princeton University Press 2011.
3. Öberg M, Jaakkola MS, Woodward A, et al. Worldwide burden of disease from exposure to second-hand smoke: a retrospective analysis of data from 192 countries. The Lancet 2011;377(9760):139-46. doi: https://doi.org/10.1016/S0140-6736(10)61388-8
4. World Health Organization Framework Convention on Tobacco Control. Geneva: World Health Assembly, 2003.
5. Marmot M, Atkinson T, Bell J, et al. Fair Society Healthy Lives The Marmot Review Executive Summary. London: The Marmot Review, 2010.