If the Assisted Dying Bill does return to parliament and become law, who may and may not be statutorily protected from compulsory involvement in the assisted dying process?
Clause 5 of the Bill differs from section 4 of the Abortion Act. Section 4(1) gives an opt-out from participating “…in any treatment authorised by this Act…”. Two landmark cases considered the words “…to participate in any treatment”. In 1989 Mrs Janaway lost her case in the House of Lords. She was a secretary/receptionist in a health centre who objected to typing a letter from a GP referring a patient to hospital for possible termination. The Court decided that “any treatment authorised by this Act” was restricted to the process of treatment in hospital.
In 2014 the Supreme Court restricted the exemption to actually taking part in treatment. Roman Catholic midwives in hospital were not exempt from assigning, supervising and supporting staff working with abortion patients, nor from keeping a managerial eye on abortion patients. The Court said this was the interpretation of the words of the statute. The midwives were not absolved from doing work which, although causally connected with, did not form part of administering the treatment which terminated the pregnancy.
The Court accepted that this interpretation of the Abortion Act does not excuse a doctor from being required to sign a certificate as to whether an abortion is warranted. NHS contracts do in practice contain such clauses, but doctors’ protection is merely contractual. It is not enshrined in statute.
Clause 5 of the current Bill provides that a person is not under any duty “…to participate in anything authorised by this Act to which that person has a conscientious objection…”. The Bill is at an early stage. Nevertheless, given the focus on the word “treatment” in the above cases, does the omission of the word in Clause 5 significantly broaden the ambit of the exemption? I am not so sure.
Clause 5 appears to cover (i) doctors who countersign a person’s declaration of the wish to die (clause 3), (ii) the attending doctor who prescribes the fatal medication, and (iii) the assisting health professional who prepares the medication, and assists the person to self-administer it and who must remain with the person until death (clause 4).
What about the judiciary? Does the conscientious objection clause apply to a judge asked to grant an application of satisfaction with a declaration of a voluntary, clear, settled and informed wish to die? The initial Lords’ debate in October 2021 was not the occasion for careful scrutiny of the wording. Nevertheless, two QCs seemed to have differing preliminary opinions. Lord Carlile said that a judge’s objection to the jurisdiction on grounds of conscience would have to be respected. Lord Sandhurst said it was not clear whether clause 5 did cover judges.
There are other workers to consider: pharmacists who dispense the fatal medication and their assistants, those working for doctors in clerical positions who write letters preliminary to the procedure of assisted death, etc. Would they be participating in anything authorised by the Act and so qualify for conscientious objection protection? I suspect the Courts would not give clause 5 such a wide interpretation. If this is correct, just as with abortion, people in some jobs will not have statutory protection from involvement in the preparatory phases causally connected with assisted dying.
Moreover, what if the conscience clause does not protect judges from having to deal with applications to approve declarations of a wish to die? Are these applications not an essential building block in the assisted dying process?
St Augustine (Confessions XI) said: “Our use of words is generally inaccurate and seldom completely correct, but our meaning is recognised nonetheless.” In the statutory context, the second phrase of this quotation may prove less reliable than the first.
Sir Stephen Stewart is president of the Thomas More Society.
This article first appeared in the January 2022 issue of the Catholic Herald. Subscribe today.
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