The Rev Dr Helen Hall, an associate professor at Nottingham Law School, and Prof Javier Garcia Oliva, Senior Lecturer at the University of Manchester, consider what legal protections there might be for doctors who do not want to participate in an assisted suicide should the practice be legalised in the UK.
The recent decision by the British Medical Association to drop its opposition to physician assisted dying, and adopt instead a neutral stance on the issue, has attracted the attention of those campaigning both for and against the legalisation of euthanasia.
A neutral position is of course extremely different from active support and it is also worth noting that the ballot was an extremely tight one: 49% of BMA members voted in favour of the motion, whilst 48% came down against it, and only 3% abstained.
As might be expected, in common with the rest of society, views amongst the medical community are sharply divided on this question.
However, there was much more consensus when it came to the issue of conscience - if legal reforms are ever introduced to permit euthanasia, then the BMA will be robust in its demands for individual doctors to be protected from involvement where this conflicts with their ethics or beliefs.
The staunch insistence on safeguarding the rights of clinicians will no doubt be welcomed by Christians. Whilst there are undeniably varying shades of opinion within Christianity when it comes to the question of assisted dying, many churches and individuals regard the deliberate, pro-active ending of human life as contrary to the tenets of their religion.
Without doubt, the same may be said of members of other faith communities, and indeed some atheists and agnostics who have ethical objections to such practices. In general, even passionate supporters of the right to die recognise the importance of safeguarding medical staff from enforced participation.
Respect for freedom of conscience is an integral part of our legal and social culture, making it pretty much inconceivable that Parliament would pass legislation permitting euthanasia, and fail to include a clause allowing doctors, nurses and others to opt out of involvement. Such a move would be politically nonsensical, since it would generate immense backlash and garner almost no approval.
In addition, in the highly unlikely event that a hypothetical statute on assisted dying omitted a conscience clause, the new law would undoubtedly fall foul of Article 9 of the European Convention on Human Rights. This fundamental safeguard means that individuals have a right not merely to hold religious, ethical and political beliefs, but also to put them into practice.
In other words, citizens are free to act in accordance with their religion and conscience, and this has been ruled to apply to employees during working hours. So, for instance, the Strasbourg Court has stated that an airline cannot forbid a Christian from wearing a cross on the flimsy justification of corporate image.
This right to manifest beliefs can only be limited for the purposes set out in the treaty, namely: the protection of public safety, order, health or morals, and the rights and freedoms of third parties. Furthermore, any restrictions which are imposed have to be proportionate to meet the need in the case, meaning that if a State goes beyond what is necessary to achieve its objectives, it will be in breach of the Convention.
In practical terms, assisted dying would have to be subject to numerous checks, and a careful process would need to be carried out in order to ensure that the person requesting to end their life was making a free and informed choice, meaning that the medical personnel involved in this situation would be a matter of planning, rather than a crisis response.
Given that service-providers would have the ability to make all of the arrangements ahead of time in these cases, it is hard to imagine any plausible justification for requiring a particular doctor or nurse to participate against their will.
Limitations on freedom of conscience must be a matter of necessity, not convenience, and patients wanting help to die could receive this without the involvement of staff members with ethical conflicts.
But a note of caution should still be sounded. So far, we have been talking about the letter of the law, and also the general social consensus as it stands in autumn 2021. Studies from jurisdictions like Holland and Belgium, which legalised euthanasia some decades ago, have shown a marked attitudinal shift as the population have become more accustomed to the idea of euthanasia. Rates of approval have increased considerably, even for the euthanasia of children in certain circumstances.
It is possible to imagine a future in which euthanasia is more widely accepted, and where those with conscientious objections are perceived as more unusual or extreme in their viewpoint. Should that come to pass, it would be important to ensure not only that there was legal protection in place, but also that individuals were not subject to peer pressure or stigma when it came to accessing it.
Whatever path law reform takes, provision for freedom of conscience is likely to be included, but its effectiveness will depend on the social setting in which it is relied upon.