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In recent years, few topics have aroused as much emotion as the problem of the conscience clause. It is a provision in Polish law that a doctor has the possibility to refuse to perform a medical service that is inconsistent with his worldview. We are talking about such controversial aspects of medicine as abortion or contraception. In order to shed some light on this delicate and intricate problem, here are some easy-to-understand explanations of how the conscience clause actually works in medicine.
Legal bases of the conscience clause in Poland
In the Act on the Profession of Physician and Dentist of December 5, 1996, we find Article 39 stating that a physician has the right to refuse to perform medical services contrary to his conscience. However, this is done under certain reservations: first of all, the doctor is obliged to indicate to the patient another doctor who will be able to obtain the given benefit. The situation must also be recorded in the medical records, including the rationale for the physician’s decision. Importantly, the conscience clause only applies to individual medical services and not to patients as persons: this means that a doctor has no right to invoke the conscience clause to refuse to treat a person, e.g. of a different religion, sexual orientation, race, etc. The conscientious objection clause also does not apply to situations of direct threat to life. Then the doctor must make every effort to save the patient’s life, regardless of his world view.
The conscience clause and contraception
One of the areas where we come across the conscience clause is contraception. It often happens that doctors refuse to prescribe birth control pills or “72 after” in the absence of health contraindications, referring to the conscience clause. Most interpretations of the aforementioned section 39 of the Act indicate that such a refusal is lawful. Nevertheless, there are often situations in which doctors fail to comply with the prescription they refer to, for example by not indicating another doctor who can prescribe the contraceptive or by failing to prepare the relevant documentation. It is also worth knowing that the law allows the doctor to refrain from performing the service, but does not exempt him from the obligation to provide the patient with reliable information, consistent with the current state of medical knowledge, also on the available methods of contraception.
The pharmacist’s conscience clause?
There are many doubts as to whether the conscience clause can be applied to a drug dealer in a pharmacy. Currently, however, the right to refuse conscientious objection applies only to doctors. At the moment, the pharmacist has no right to refuse to dispense the drug, the use of which he considers inconsistent with his conscience. Moreover, under the current provisions of the pharmaceutical law, pharmacies are obliged to meet the needs of the local population in the issue of medical devices (which include contraceptives according to the law). Persistent refusal to meet these needs may be the basis for withdrawing the pharmacy’s authorization to operate, although in practice it would be extremely difficult to prove that we are dealing with such a situation and not, for example, with a temporary shortage of stock.
Conscience clause – for and against
Supporters of the conscience clause indicate that this provision is a guarantee of religious freedom for doctors who would otherwise be forced to practice contrary to their beliefs. It is also often argued that many of the services covered by the conscience clause are not health or life saving medical procedures, but are rather related to lifestyle, such as contraception, and therefore cannot be accused of refusing to prescribe such measures of failure to comply with their duties.
The opponents of this provision argue, however, that the doctor is, in a sense, a state official and therefore should remain neutral in his worldview. Denying access to certain services, especially contraception and abortion, is seen in some quarters as restricting women’s freedom to decide about their own reproduction. Another argument is that the conscience clause has a direct impact mainly on the poorest – because often the reluctance of doctors contracted with the National Health Fund to e.g. prescribe contraceptives is used by private clinics that issue prescriptions after paying the appropriate fee. In this way, only those who are willing to pay for visits to the doctor have access to the full benefits.