This article appeared in the May 1992 edition of the Catholic Medical Quarterly
TO REFER OR NOT TO REFER.
Should the doctor with a conscientious objection to abortion refer a patient to another doctor whom he well knows will recommend an abortion? A legal interpretation of the NHS regulations makes it quite clear that a GP in contract with the NHS who cannot, for what- ever reason, provide a particular service is under an obligation to refer the patient to someone who he or she believes will provide that service. But if that service involves an abortion where does the conscience clause come in? The Abortion Act contains a conscience clause and until recently it was widely held that any individual approached for advice or help about a possible abortion could invoke that clause if they had conscientious objections to abortion. The House of Lords ruling in the Janaway case (R. v. Salford Area Health Authority ex. parte Janaway, 1, 12.1988) effectively shattered that view.' The Lords ruled in effect that the only persons who could invoke the conscience clause were those who would be directly involved in the very act of abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses). Those whose involvement would be more indirect, particularly the doctor asked to sign the Form HA1, cannot invoke it. The legal impact of this decision means that no GP can claim that the conscience clause overrides the regulations save in the very rare circumstances where the doctor might be expected to perform the act of abortion itself. Even the BMA Handbook of Me&cal Ethics promotes the now erroneous view that the conscience clause covers the GP. It states that the doctor with a conscientious objection "has a duty to allow his patient access to alternative medical advice if she wants it" (Section 5.5-8.)
Faced with such an impressive ruling the GP with conscientious objections becomes a threatened species. But a legal obligation has not materialised in the past and it is unclear whether legal action will be taken against those refusing to refer in the future. Lord Keith of Kinkel in his full judgement in The Lords went on to say 'it does not appear whether or not there are any circumstances under which a doctor might be under any legal duty to sign a green form so as to place in difficulties one who had a conscientious objection to so doing. The fact that during the 20 years that the Act of 1967 has been in force no problem seems to have surfaced in this connection, may indicate that in practice none exists'.
What then is the position of the Catholic doctor, or indeed any doctor with a conscientious objection? The view of the BMA is that doctors do not have an ethical obligation to sign the statutory form (HSA1); that they do have an ethical duty to refer the patient expeditiously to another practitioner, and that unreasonable delay in referral is contrary to good practice.
The recognition that doctors do not have an ethical obligation to sign the form HSA1 is to be welcomed and must certainly strengthen our case. To say, however, that there is an ethical duty to refer the patient expeditiously to another practitioner may create considerable unease. Ethical duty implies an obligation but it is generally accepted that although the doctor may not impose his ethics on the patient neither can the patient impose hers on him.
Again it would seem that expeditiously, meaning doing or done speedily, is used here as a euphemism for 'as quickly as possible'. The Terms of Service for GPs uses the term 'appropriate' [Para 13 (2)dl when it requires GPs 'to arrange for the referral of patients, as appropriate, for the provision of services under the NHS Act 1977'. Appropriate means suitable or proper, which cannot possibly he interpreted in a jet like sense. A suitable or proper referral would be to a doctor regarded by the referring doctor as a suitable and proper doctor for the needs of a particular patient.
Unreasonable delay implies that reasonable delay is acceptable. It is obvious that it should be so recognised to allow for the provision of adequate counselling; and this is certainly part of good medical practice.
The heart of the, matter emerges when the doctor with the conscientious objection is confronted with a patient who has firmly decided on an abortion. Does he feel he is passing the buck by referring to a practitioner known to favour abortion?. Should he inform the patient that in the circumstances it would be better for her to register with another doctor? The opinion of an eminent barrister with long experience in ethico-legal matters is that the doctor may, and professionally should, inform the woman that she has a right to approach another doctor, without specifying anyone, to see if that doctor will assist her in her desire. ne view of a moral theologian, provided by the Bishop's Joint Committee on Bio-Ethical Issues, is that doctors with conscientious beliefs should not have scruples about referring patients to another doctor as it is the patient who in fact makes the decision. The doctor must have an absolute respect for the integrity of the patient as a rational and autonomous human being; and this respect precludes the doctor firm attempting to coerce or even to persuade the patient to take a course of action which the doctor thinks right. Such a view however does not preclude the doctor from attempting to guide the patient in a reasonable and tactful way along morally right lines.