Making ‘correct’ moral judgments

In the ‘moral distress’ literature (see discussion on moral distress in Chapter 5 ), it is commonly assumed that, when encountering a troubling moral issue, nurses have, from the start, correctly judged what is the right thing to do but are constrained from taking appropriate action. This, however, is a highly contentious point and one that warrants further examination ( Johnstone & Hutchinson 2015 ). Given the moral importance of any decision to ‘take a stand’ and the reality that, in many instances, mistakes can be made about what the right course of action is in a given situation, nurses need to be clear about the nature of the judgment processes they are using to reach a point of view.

As previously discussed in Chapter 5 , it was contended that, when faced with uncertainty and complexity, nurses are just as vulnerable as others to constructing idiosyncratic ‘subjective interpretations of issues beyond their objective features’ ( Sonenshein 2007 : 1026). It was further asserted that, like others, nurses approach situations with their own individual systems of ethics and predetermined stances on what they value and believe is right and wrong. Literature reviews on the subject of nurses’ ethical reasoning and behaviour provide some evidence in support of this observation. Reviews by Dierckx de Casterlé and colleagues (2008) and Goethals and colleagues (2010) , for example, have each respectively found that nurses tend to decide and justify their moral decisions by appealing to their own personal values and experience s, rather than by engaging in critical reasoning. Goethals and colleagues’ review has further suggested that what often drives nurses’ behaviour is not a considered select theoretical approach to ethical reasoning and behaviour, but rather personal convictions, religious beliefs, education, upbringing, intuition and feelings ( Goethals et al 2010 : 644). Although this review found that some nurses do engage in a more systematic approach to ethics, their approach was still problematic on account of their disposition to draw on a variety of ethical theories and principles and to apply these in idiosyncratic ways. These findings concur with the findings of an earlier US study which found that the more years of experience nurse participants had the less inclined they were to use a critically reflective approach to their ethical decision-making in practice, relying instead on their own personal values ( Ham 2004 ).

In light of these considerations, it is not at all clear that nurses’ moral judgments will necessarily be ‘correct’ and thus it is inevitable that others, also acting on ‘bounded personal ethics’, will disagree with them. It is also highly probable that, while nurses might feel steadfast in their moral viewpoints, others (including patients and their families) might hold equally steadfast opposing views and feel just as rankled as do nurses when their personal values conflict with others and their viewpoints are not respected.

Common situations involving moral conflict

It is over three decades since Yarling and McElmurry (1986) identified the kinds of morally conflicted situations that nurses of the day commonly found themselves in when planning and delivering nursing care to patients. The situations identified included, but were not limited to: pain management, cardiopulmonary resuscitation (NFR / DNR) directives, withholding or withdrawing life-sustaining treatment, refusals of consent to treatment, professional control of client information, and harmful care by another practitioner. It was contended that ethical conflict dilemmas arose in these situations when nurses were forced to choose between the patients’ interests, their own interests, moral integrity and professional survival. Cases in which patients’ rights and wellbeing were threatened or violated by the actions of another (including ‘the system’) were seen as being particularly illustrative of the poignancy of the ethical conflicts nurses sometimes faced.

More recent research has suggested that, although the theorisation and practice of nursing ethics has developed substantially over the past 30 years, nurses continue to experience ethical conflict dilemmas in their employer organisations. For example, a small number of Canadian, Swedish, Pakistani and Polish studies have found that nurses experience ethical conflict and associated dilemmas with their employing organisations in four key areas:

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  resources – both economic and human (encompassing a lack of time, a lack of staff, a lack of beds and the general impact these factors have on the work conditions of staff and on the quality and safety of patient care)

  
  
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  disagreement with organisational values, policies and rules (e.g. early discharge of patients who lack social support)

  
  
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  conflict of interest (between patients and health professionals, health professionals and health professionals, health professionals and health service organisations; ‘professional secrecy’ entailing a lack of transparency or openness of the organisations; ineffective or inappropriate actions taken by organisations – including ‘turning a blind eye’ to questionable practices)

  
  
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  lack of respect for professionals (nurses not feeling respected, valued and supported by their organisations; lack of investment in nurses’ professional development) ( Gaudine et al 2011 ; Idrees et al 2018 ; Kälvemark et al 2004 ; Thorne 2010 ; Wlodarczyk & Lazarewicz 2011 ).

Whether nurses who have found themselves in the above kinds of situations have exercised wise and prudent judgments in dealing with them, however, remains an open question.

Professional judgment

Nursing competency standards, codes of conduct and codes of ethics all make clear that, when deciding and acting in nursing care contexts, nurses must use their professional judgment . The ICN Code of ethics for nurses ( ICN, 2012a ), for example, emphasises the role of judgment in nursing practice. For example, the Code prescribes that:

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  The nurse holds in confidence personal information and uses judgement in sharing this information (Element 1: Nurses and people, p 2)

  
  
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  The nurse uses judgement regarding individual competence when accepting and delegating responsibility (Element 2: Nurses and practice, p 3). [emphasis added]

( ICN 2012a )

National nursing codes and standards contain similar statements. For example, in the preamble to the ‘Domains, principles and values’ section of the Nursing and Midwifery Board of Australia (NMBA 2018b : 4) Code of conduct for nurses , clarification is provided of the expectation that the principles outlined ‘apply to all areas of practice, with an understanding that nurses will exercise professional judgement in applying them, with the goal of delivering the best possible outcomes [emphasis added]’. Likewise the Nursing Council of New Zealand (NCNZ 2012a : 44) Code of conduct for nurses recognises that, in the course of doing their work (in particular when performing health assessments), nurses must use their ‘knowledge and judgement’ when interpreting data. In regard to specific ethical issues, the NZ Code recognises that consumers have the right to consent to disclosures of information about themselves and that in ‘the absence of consent’ the nurses must make ‘a judgement about risk to the health consumer or public safety considerations’ (Principle 5.5); it also prescribes that nurses must declare ‘any personal, financial or commercial interest which could compromise your professional judgement’ (Principle 7.10).

Despite these and other codified expected behaviours, just what constitutes professional judgment and why, if at all, it is morally important tends to be assumed rather than made explicit. This is problematic since it may leave nurses unsure about what constitutes a bona fide professional judgment as opposed to a mere opinion when making moral decisions. It is here that some clarification of what constitutes professional judgment and its relationship to moral decision-making is warranted.

The nature and moral importance of professional judgment

Judgment has been variously defined as the ‘ability to make considered decisions or arrive at reasonable conclusions or opinions on the basis of the available information’ ( Oxford English dictionary 2018 online), the ‘faculty of being able to make critical distinctions and achieve a balanced viewpoint; discernment’ ( Collins English dictionary 2018 online) and the ‘ability to judge, make a decision, or form an opinion objectively, authoritatively, and wisel y , especially in matters affecting action; good sense; discretion: a person of sound judgment’ ( http://dictionary.reference.com/browse/judgment ). The counterpart of judgment (as in ‘against one’s better judgment’) is defined in terms of being ‘contrary to what one feels to be wise or sensible’ ( New Oxford dictionary of English 2001 : 989) and ‘contrary to a more appropriate or preferred course of action’ ( Collins Australian dictionary 2011 : 888).

Drawing on these basic definitions, professional judgment might be loosely defined as judgment based on a discerning and ‘best use’ of professional knowledge, values, experience etc., to make a decision. Although relying on professional knowledge, professional judgment involves substantially more than the application of mere ‘technical knowledge’ ( Coles 2002 : 5). Rather it encompasses what Coles (2002 : 5) describes, quoting Carr (1995 : 71), as the ‘supreme intellectual virtue’ of practical wisdom – a way of thinking that is inseparable from professional judgment. For Coles it is professional judgment and the practical wisdom that is inherent in it, which stands as the hallmark of professional practice and which distinguishes it from being ‘merely technical work’ ( Coles 2002 : 5).

Wisdom, regarded in philosophy as being one of the four cardinal virtues, may be defined as the ability to ‘think and act utilizing knowledge, experience, understanding, common sense, and insight’ ( Collins Australian dictionary 2011 : 1868). It has also been defined as encompassing a ‘deep understanding and realization of people, things, events or situations, resulting in the ability to apply perceptions, judgements and actions in keeping with this understanding’ ( Wikipedia 2018h ). At its most basic, however, wisdom may be defined simply as making the best use of knowledge – the opposite of which is foll y (i.e. the state or quality of being foolish, stupid or rash).

Taking into account these basic definitions of judgment and wisdom, Coles (2002) , with reference to the influential work of Carr (1995) , argues that professional judgment occurs along a spectrum, notably:

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  Intuitive – concerned with the immediate and the urgent; prompts the question: ‘What do I do now ?

  
  
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  Strategic – also concerned with the immediate and urgent and encompasses contemplation of a wider range of possibilities; prompts the question: ‘ What might I do now?’

  
  
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  Reflective – concerned with situations of uncertainty and requires the time and capacity for deeper thought; prompts the question: What could I do now?

  
  
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  Deliberative – concerned with situations occurring in professional practice that require moral deliberation ; prompts the question: What ought I do now?

According to Carr (1995 : 284), the professional sees practice ‘as involving competing moral ideals, moral conflicts and unresolvable dilemmas’. Drawing on this view, Fish and Coles (1998 : 68, 284) contend that these competing moral ideals, conflicts and quandaries are ‘endemic to practising as a professional’. It is a mistake, however, to think that the task of professional judgment is wholly to determine what is the ‘right’ course of action in morally conflicted situations since there may be no simple answers in some situations ( Coles 2002 : 4). Rather, it is to determine what is ‘best’ in the situation at hand. As Carr (1995 : 71) explains:

[Professional action] is not ‘right’ action in the sense that it has been proved correct. It is ‘right’ action because it is reasoned action that can be defended discursively in argument and justified as morally appropriate to the particular circumstances in which it was taken.

Professional judgment then may be taken as encompassing ‘the nexus of expertise and wisdom’ and it is this that sets it apart from more ‘routinely technical work’ ( Hawse & Wood 2018 ). Practical wisdom is especially important since, as Zhu and colleagues (2016 : 710) explain with reference to the ancient Greek philosopher Aristotle:

Practical wisdom not only drives action that is intentional, it also uses tacit knowledge and experience, considers the long-term future, and incorporates a broad spectrum of ways of knowing and perspectives. In doing this, a wise person can generalize beyond what narrow expertise can, and know what to do in specific instances.

In light of these considerations it can be seen that, when encountering competing and conflicting moral points of view, it is not sufficient for nurses to rely on their own ‘personally bounded ethics’ or technical knowledge in deciding what is the right or best thing to do in the situation at hand. Rather they must use scrupulous professional judgment involving the entire spectrum of intuitive, strategic, reflective and deliberative thinking and ensure that, when deciding what to do, they do so on a foundation of practical and moral wisdom (moral praxis).

The nature of conscience explained

The Oxford English dictionary (2014 online) defines ‘conscience’ as:

the internal acknowledgment or recognition of the moral quality of one’s motives and actions; the sense of right and wrong as regards things for which one is responsible; the faculty or principle which pronounces upon the moral quality of one’s actions or motives, approving the right and condemning the wrong.

The Collins English dictionary (2018 online) defines ‘conscience’ as a ‘sense of right and wrong that governs a person’s thoughts and actions’. These definitions, however, are inadequate to answer questions concerning the legitimacy and power of conscience as a bona fide moral authority. In short, although they help to describe what conscience is, these definitions say nothing about whether individuals should always obey their conscientious senses of right and wrong, or whether others can reasonably be expected to respect another’s conscientious claims. In order to find answers to these and related questions, a philosophical analysis is required, and will now be advanced.

Philosophical accounts of conscience fall roughly into three categories: as moral reasoning , as moral feelings and as a combination of moral reasoning and moral feelings (see Beauchamp & Childress 2013 ; Hume 1888 ; Kant 1930 ; Mill 1962 ; Rawls 1971 ).

How conscience works

Now that we have briefly examined the essential nature of conscience, the next question is: ‘How does conscience function as a moral authority?’

Contentious convictions can be exercised in one or both of two ways: ‘to avoid doing what is apparently evil or engage in doing what is apparently good’ ( Murphy & Genuis 2013 : 348). In either case, conscience functions as a personal (internal) sanction and as a personal moral authority for decision-making ( Beauchamp & Childress 2013 ). Claims of conscience typically identify individual people with their self-chosen or autonomously chosen standards and principles of conduct ( Nowell-Smith 1954 : 268). Further, they commit individual people to act in accordance with those principles. In other words, claims of conscience commit the individual person to act morally ( Timms 1983 : 41). Thus, when conscience is said to be ‘personal’ or ‘one’s own’, all that is being claimed is that a particular set of autonomously chosen moral standards has authority over a particular person – not, as is sometimes mistakenly thought, that the person has a unique and different set of moral standards from everybody else, and thus is a kind of ‘moral freak’.

Conscience can be appealed to both as a kind of ‘reviewer’ or ‘judge’ of past acts, and as an ‘authority on’ or as a ‘guide to’ future acts. Whether conscience is appealed to as judge or guide, however, it is important to understand that conscience is not morality itself, nor is it the ultimate standard (or even a standard) of morality. Rather, as Gonsalves (1985 : 55) explains, it is:

only the intellect itself exercising a special function, the function of judging the rightness or wrongness, the moral value, of our own individual acts according to the set of moral values and principles the person holds with conviction.

Or, as Beauchamp and Childress explain (2013 : 42), it is ‘a form of self-reflection about whether one’s acts are obligatory or prohibited, right or wrong, good or bad, virtuous or vicious’.

The above views make it plain that statements of conscience are not statements of a unique moral faculty or of unique moral standards. Rather, they are statements of a particular application of adopted moral standards. Conscientious objection, by this view, essentially translates into a case of moral disagreement in regard to which moral statements apply and what one’s moral duty is in a particular situation. If this is so, the case for respecting a conscientious objector’s claims becomes compelling – particularly in instances where there are no clear-cut moral grounds for settling a specific disagreement (e.g. responding to a patient’s request for euthanasia).

The problem remains, however, that consciences are fallible and can make mistakes ( Seeskin 1978 ). As Nowell-Smith (1954 : 247) points out, some of the worst crimes in human history have been committed by people acting on the firm convictions of conscience. Hitler, for example, believed he was fulfilling a supreme moral duty by purging the German race of its ‘Jewish disease’ ( Kordig 1976 ). Others also point out that, in some instances, what appears to be a claim of conscience may be nothing more than a claim of prudence, self-interest or convenience. This invariably raises the question: ‘Should I always obey my conscience?’ Further to this, claims of conscience can be insincere or counterfeit, raising the additional questions of: ‘How can I distinguish between genuine and bogus claims of conscientious objection?’ and ‘Should I always respect another’s conscientious claims?’ It is to answering these questions that this discussion now turns.

Bogus and genuine claims of conscientious objection

Whether a claim of conscience should ever be permitted and under what circumstances is a matter of controversy and is emerging as a deeply polarising issue – particularly in regard to whether conscientious objection should ever be permitted in health care contexts (see, for example, the debate progressed in the special issues of the American Journal of Bioethics (June and December issues 2007), Bioethics (January issue 2014), the Cambridge Quarterly of Healthcare Ethics (January issue 2017) and the Journal of Medical Ethics (April issue 2017) respectively, as well as articles published at random in other journals). Controversy aside, and accepting for argument’s sake that there are grounds for permitting conscientious objection, one of the key issues concerns how to prove whether claims of conscientious objection are ‘genuine’ and ‘reasonable’, and whether standards of justification for permitting or refusing claims of conscientious objection can ever be satisfactorily met. In an attempt to address this problem, various criteria for distinguishing between bogus and genuine (reasonable) claims of conscience have been devised, noting that at a minimum ‘they cannot involve empirical falsehoods, objectively discriminatory attitudes or unreasonable normative beliefs’ ( Liberman 2017 : 495). Neither can they rest on mere dislikes and aversions or arbitrary points of view ( Uberoi & Galli 2017 ). It is to considering possible criteria for distinguishing genuine from bogus claims of conscientious objection that this section now turns.

It is contended here that, for a conscientious objection to be genuine, it must satisfy at least five conditions.

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  It must have as its basis a distinctively moral motivation , as opposed to the motivations of mere self-interest, prudence, convenience or prejudice. By this is meant:

  
  
  
  
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    that the action has as its aim the maintenance of sound moral standards, and the achievement of a desired moral end ( Garnett 1965 )

    
    
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    that the person performing the act sincerely believes in the moral characteristics of the action in question, and sincerely desires to do what is right ( Broad 1940 : 75; Childress 1979 : 334), and

    
    
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    that the desire to do what is right is sufficient to override considerations of fear, cowardice, self-interest and prejudice.

  
  
  
  
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  It must be performed on the basis of autonomous, informed and critically reflective choice . By this is meant:

  
  
  
  
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    that the action must be the individual’s ‘own’ – that is, it is autonomous and not the product of coercion or manipulation, and

    
    
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    that the action has been carefully considered – that is, that the person has taken into account all the relevant factual as well as ethical information pertaining to the situation at hand, possible alternatives to the action being contemplated, and predicted moral outcomes of the action once it is taken ( Broad 1940 : 75).

  
  
  
  
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  It should be appealed to only as a last resort – that is, in defence of one’s moral beliefs and integrity. A claim of conscientious objection is a last resort when all other means of achieving a tolerable solution to a given moral problem have failed. Here conscientious objection is justified on grounds analogous to those justifying self-defence, which permit people to use reasonable force in order to preserve their integrity (in this case, their moral integrity) ( Machan 1983 : 503–5).

  
  
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  The conscientious objector must admit that others might have an equal and opposing claim of objection . For example, a nurse refusing on conscientious grounds to assist with an abortion procedure must be prepared to accept that the aborting surgeon may feel obliged as a matter of conscience to go ahead with the abortion. To quote from Broad: ‘What is sauce for the conscientious goose is sauce for the conscientious ganders who are his [sic] neighbours or his [sic] governors’ ( Broad 1940 : 78).

  
  
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  The situation in which it is being claimed must itself be of a nature which is morally uncertain – that is, there are no clear-cut moral grounds upon which the matter at hand can be readily and satisfactorily resolved, and competing views can be shown to be equally valid.

If these criteria are accepted, then the task of distinguishing bogus from genuine claims of conscientious objection becomes easier. To illustrate this, consider two types of situations in which nurses might claim conscientious objection: (i) the lawful but morally controversial directives of an employer or manager; and (ii) a conflict of personal values between a nurse and a patient.

Conscientious objection and policy considerations

The question remains of whether legislative and policy provisions should be made for conscientious objection in health care contexts. In answering this question the following considerations apply. First, forcing nurses to act against their reasoned or conscientious judgments is to undermine their moral authority and also to unjustly violate their integrity as morally responsible and accountable professionals.

Second, it is generally recognised that if people are forced constantly to violate their conscience then their conscience will gradually weaken and lose its authority ( Kant 1930 ). This in turn makes it easier for individuals to avoid fulfilling their perceived moral duties and acting in accordance with their autonomously chosen moral standards. As a result, there is likely to be a general breakdown in compliance with moral rules and principles, and a general erosion of individual moral responsibility and accountability.

Third, it is generally accepted that moral duty is mainly concerned with the prohibition and avoidance of behaviour that is intolerable ( Urmson 1958 : 214). If fulfilling one’s supposed duty does not avoid or prevent intolerable results, it seems reasonable to question whether in fact it was one’s duty in the first place. As with the case of supererogatory acts (i.e. acts above the call of duty, such as those performed by saints and heroes), care must be taken to distinguish those deeds which can be reasonably expected of ‘ordinary’ persons (or ‘ordinary’ nurses) from those which it would merely be nice of ‘ordinary’ persons (nurses) to perform, but which could never be reasonably expected of them. On this point, Urmson (1958: 213) argues: ‘a line must be drawn between what we can expect and demand of others and what we can merely hope for and receive with gratitude when we get it’.

Fourth, those who coerce others to act against their conscience erroneously presume that coercion vitiates moral responsibility. This, however, is not so. Just as more-sophisticated claims of duty cannot be escaped or deceived, nor can claims of conscience. It is a mistake to hold that, if a person is forced to perform an act to which they are conscientiously opposed, they are less morally culpable for that act, and that they will feel less morally guilty for having performed it. What users of force fail to understand is that an instance of moral violation still stands, regardless of whether it has been caused by an act of coercion or an act of free will.

Fifth, nurses are and can be held independently accountable and responsible for their actions. Given this, it is a mistake to hold that nurses have an unqualified duty to obey the directives of an employer or manager.

Lastly, it is ultimately more desirable than not to have a health care system comprised of conscientious nurses. Nurses comprise more than 50% of the total health care workforce. Since most of us cannot be saints, but can be conscientious, we need to preserve and cultivate conscientiousness ( Garnett 1965 : 91; Nowell-Smith 1954 : 259). Only by doing this can we be assured of achieving and maintaining some sort of moral order in health care domains. As Seeskin (1978) argues, ‘we have no guarantee that our deliberations will be perfect or our moral sensibilities adequate’ (p 299); it is for this reason, among others, that conscience and moral conscientiousness should be given a place among the moral virtues. We might be condemned as fanatics if we hold conscience to be infallible, but if we do not at least acknowledge its ultimateness in the scheme of moral reasoning, we might be guilty of moral negligence and moral irresponsibility ( Kordig 1976 ; Seeskin 1978 ).

Despite those who insist otherwise (see debate in the special issues of the journals mentioned earlier), ‘conscience matters’ and is worthy of protection ( Sepper 2012 ; Trigg 2017 ; Wicclair 2011 ). This warrant becomes especially pressing when it is considered that a clinician with a conscience (doctor, nurse, pharmacist) is not just a ‘health worker’ compelled to do a job but, as Harris and colleagues (2018 : 563) point out, also ‘a social, economic, and political agent, responding to, and exerting, social and political pressures’– something which policies on conscientious objection usually fail to take into account and which ‘are themselves created in the context of similar pressures’. This does not mean that conscientious objection should be given ‘blanket protection’. However, it does mean, as Wicclair (2000 : 227) has concluded in an influential essay on the subject, that ‘there is a need for a more nuanced understanding and analysis of the relevant moral interests and values’ at stake.

Conscientious objection stands as a site of conflicting rights. This has seen the emergence of debate on three conflictual positions (see, for example, Fleming et al 2018 ; Sepper 2012 ; Trigg 2017 ; Uberoi & Galli 2017 ; Wicclair 2011 ; and the special issues (mentioned earlier) of the American Journal of Bioethics , Bioethics , the Cambridge Quarterly of Healthcare Ethics and the Journal of Medical Ethics ). Significantly, these positions mirror the respective positions (e.g. conservative, moderate and liberal) that may be taken on the issues that are the focus of a conscientious objection claim (e.g. abortion, euthanasia / assisted dying discussed in the previous chapter). These positions may be characterised as follow:

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  Conservative view – which has been termed by Wicclair as the ‘incompatibility thesis’ and is based on the assumption that ‘conscience-based refusals to provide legal and professionally permitted goods and services within the scope of a practitioner’s competence are incompatible with the practitioner’s professional obligations’ ( Wicclair 2011 : 33). In this view, conscientious objection can never be justified and thus should never be allowed (the rights of patients supersede the conscience claims of health care providers; those who decline services on conscientious grounds should be disciplined, dismissed and even deregistered in a manner commensurate with that of other negligent failures; alternatively, those with conscientious objections should leave or not even enter the profession at all – e.g. ‘quit nursing’).

  
  
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  Moderate view – which Wicclair has termed the ‘compromise view’ and holds that ‘the exercise of conscience is compatible with fulfilling one’s core professional obligations’ ( Wicclair 2011 : 34). By this view, conscientious objection is justified and permissible in clearly defined circumstances but limited on grounds of service delivery; this position controversially encompasses an ‘obligation to refer’ cases of requests for abortion, euthanasia and the like to other providers who are not conscientiously opposed to the procedures in question. The obligation to refer, however, is controversial, with some regarding it as being as tantamount to complicity in the acts in question and hence as morally culpable.

  
  
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  Liberal view – which Wicclair has termed ‘conscience absolutism’ and is based on the assumption that ‘there are no ethical constraints on the exercise of conscience by health care professionals’ and that ‘health care professionals generally do not have an obligation to perform any action, including disclosure and referral, contrary to their conscience’ ( Wicclair 2011 : 34). Conscientious objection, by this view, is regarded as a human right and, as such, is both justified and permissible not least on grounds of preserving an agent’s moral integrity, which they have a right to defend. It is also justified on grounds of the value of ‘moral diversity’ and allowing different moral viewpoints to be expressed and considered ( Fleming et al 2018 ; Sepper 2012 ; Trigg 2017 ; Uberoi & Galli 2017 ; Wicclair 2011 ; and special issues of the journals referred to earlier).

These three positions, which have been robustly debated in the literature (too numerous to list here) are likely to become the subject of increasing attention in the future as jurisdictions around the world enact legislation that falls within the domain of ‘moral politics’ – for example, abortion, euthanasia and medically assisted dying, organ transplantation, rationing of health care resources, and the like. Moreover, as the three cases discussed by Fleming and colleagues (2018) show, there can be a serious mismatch between ‘conscience clauses’ (policies and legislation that espouse to safeguard the right of practitioners to conscientious objection) and the reality that practitioners often face and are forced to live with upon exercising a right to conscientious objection (see also Sepper 2012 ). It will be recalled that the three midwives referred to earlier faced ‘hostile reactions from colleagues, professional associations and managers’. It is significant that not only were they not supported, they were alienated by their peers and member associations, who spoke out against them ( Fleming et al 2018 ). These and similar cases have worrying implications for the rights of nurses and others ostensibly protected by ‘conscience clauses’ in euthanasia / assisted dying legislation. Just what is to count as a ‘reasonable objection’ and ‘reasonable accommodation’ under such legislation and related policies is unclear and yet to be tested ( Sepper 2012 ; Trigg 2017 ). Also of concern is the possible risk to nurses where a liberal view on conscientious objection might be imposed – which, to some extent, it already is by virtue of the requirement for objected cases to be referred to another practitioner. Just how ‘easy’ making referrals will be for nurses – particularly as morally controversial practices become ‘normalised’ – is yet to be verified. It is not far-fetched to imagine, for example, that in the future, just as nurses have been rebuked, disciplined and ostracised for refusing to assist with abortion work, so too will they face such responses for refusing to assist with or refer patients for euthanasia / assisted dying.

In its position statement on Conscientious objection , the federal Australian Nursing and Midwifery Federation (ANMF 2017) makes clear that colleagues who exercise their right to make a conscientious objection should be supported and ‘not placed in situations that may compromise their religious, moral and ethical beliefs’. It also clarifies that ‘discriminatory or adverse action should not be taken against any nurse, midwife or assistant in nursing voicing a conscientious objection either in an application for, or during employment’ and that ‘in health and aged care facilities nurses and midwives should have access to counselling and support services to meet their needs in their workplaces’ ( ANMF 2017 ). How well this stance will be upheld in practice remains to be seen and is likely to be tested in the not too distant future.

The above considerations have important implications for legislators and policy-makers (including those in nursing organisations and nurse regulating authorities) attempting to respond to the conscientious objection problem. For example, even if nurses’ consciences are mistaken, on balance there are moral benefits to be gained by permitting their conscientious objections – not least, the benefits of fostering moral sensitivity and moral responsibility in the workplace. A second implication is that, if nurses are not permitted to object conscientiously, then health care contexts may be morally worse off by virtue of thwarting their conscientious practice. There is much to support the view that a health care system comprised of morally conscientious and sensitive nurses would be much better than one without such nurses. This seems to support the conclusion that genuine conscientious objection is not only morally permissible, but also, in the ultimate analysis, may even be morally required. For a conscientious objection policy to be effective and reliable, however, at least two minimal requirements must be fulfilled.

First, conscientious objectors must demonstrate that their claims are sincere. A given proof need not be religious in nature, nor necessarily absolute. As we have seen throughout this book, it is not always inconsistent for nurses (or others) to have a ‘moderate’ position on the moral permissibility of certain procedures, such as abortion and euthanasia / assisted suicide. Thus, it would not necessarily be inconsistent of nurses to, say, support abortion and to participate in most abortion procedures at their place of employment, yet nevertheless be opposed to a ‘particular case’ of abortion where the procedure in question fails to satisfy certain autonomously chosen moral standards. The same applies in the case of euthanasia / assisted suicide. Conscientious objection policies, then, must recognise and make provision for the moderate’s position, and accept that sometimes conscientious objectors might refuse to assist with a type of procedure they have previously assisted with, such as abortion.

A second minimal requirement is that employers must carry the burden of proof that no alternative is available when not permitting nurses to refuse, on conscientious grounds, to assist with a given procedure. It is difficult to accept that a claim of conscientious objection cannot be accommodated in cases where nurses have used rightful means in expressing a conscientious refusal – that is, superiors have been given advance notice of an intention to refuse, reasons for refusal have been made explicit, replacement or other attending personnel have not been unduly compromised, other interests of comparable moral worth have not been sacrificed and patients have not been stranded. Where an employer does not accept a nurse’s genuine conscientious objection claims, serious questions need to be asked about whether the employer has sincerely tried to find viable alternatives which would make it possible for conscientiously objecting nurses to withdraw from situations they deem morally troubling or intolerable.