Professional judgment, moral quandaries and taking ‘appropriate action’





Learning Objectives


Upon the completion of this chapter and with further self-directed learning you are expected to be able to:




  • Identify at least four key areas in which nurses might encounter a situation involving moral conflict.



  • Discuss critically the nature and moral importance of nurses’ professional judgment in morally conflicted situations.



  • Discuss critically the nature of conscience and its role in guiding ethical nursing conduct.



  • Outline five conditions that must be met in order for a claim of conscientious objection to be genuine.



  • Examine critically arguments both for and against the view that nurses ought to be permitted to conscientiously refuse to participate in certain procedures in nursing and health care contexts.



  • Define whistleblowing.



  • Discuss the possible adverse consequences to nurses of blowing the whistle in health care.



  • Examine critically the conditions under which whistleblowing in health care might be justified.



  • Discuss critically the notion of ‘preventive ethics’.



  • Distinguish between a reactive and a proactive approach to ethical conflict in health care.



  • Explain what is meant by the ethics–quality linkage.



  • Outline the four-step process that might be used as a preventive ethics measure.



  • Discuss the nature and role of ‘appropriate disagreement’ in regard to ethical issues in health care.





Introduction


At some time during the course of their professional practice, nurses will encounter situations in which they must take ‘ appropriate action ’ in order to prevent or remedy a risk of harm being caused by another. Taking such action can involve either an individual or a collective initiative. Individual action may involve a nurse: refusing conscientiously to participate in a controversial medical or nursing procedure; reporting to an appropriate authority an instance of substandard practice, an impaired practitioner, an error, or some other troubling incident that poses a threat to patient safety (e.g. a health care provider practising beyond their scope of practice); seeking advice from a manager, clinical ethics committee or some other decision-making authority; or ‘speaking out’ in either a conference or some other public forum. On rare occasions, a nurse might decide to ‘go public’ and approach media outlets to have his / her concerns aired. Collective action, on the other hand, may involve groups of nurses embarking on an organised lobbying campaign aimed at particular target groups. Alternatively, as has become increasingly common around the world, it may involve industrial action – particularly in situations involving substandard working conditions that are placing patient safety at risk.


Whatever action is taken, it is never free of moral risk. There are many examples in the nursing, legal and bioethics literature (too numerous to list here) of nurses experiencing a range of hardships both personally and professionally because they took a stand on what they deemed to be an important professional or moral issue. For example, nurses who have gone public with patient safety concerns have sometimes been vilified and even lost their jobs for taking the actions they took (examples of which will be given in this chapter).


Despite the possible risks associated with taking appropriate action in response to a wrong-doing or a troubling moral issue, nurses nonetheless have both a moral and a professional obligation to take such action. There are, however, some misconceptions about the nature of this obligation, the options open to nurses for taking a stand, what kind of action they should take and even about whether it is right to take such action at all. Some nurses even fear that some of the options open to them are incompatible with their broader professional obligations as nurses and are therefore ‘unprofessional’. In some instances this has caused significant inner personal conflict (emotional turmoil), and has served more to compound the moral problems they face in the workplace than to help resolve them.


This (and the following) chapter attempts to clarify some of the confusion surrounding various options open to nurses for taking a stand on a morally problematic issue. To this end, attention is given to briefly discussing the kinds of actions nurses might take, the bases upon which their actions might be justified, the kinds of quandaries that nurses might face when deciding whether to take a particular course of action or to ‘stand back’, and to show that, despite the quandaries associated with them, the options open to nurses might not only be compatible with professional nursing obligations, but may even be prima-facie professional nursing obligations in themselves. It is to discussing the particular options of conscientious objection and whistleblowing, and the possible option of taking a systems approach to preventing ethics conflicts in the workplace, that this chapter now turns. Before doing so, however, a point of clarification is required on dealing with moral conflict in the workplace and the role of professional judgment in deciding what is the ‘right thing to do’.




Moral conflict and professional judgment


As discussed in Chapter 5 of this book, moral disagreements are an inevitable part of the health care landscape and are particularly pressing when they involve issues which people deem to be of high importance and which impinge on their personal moral values. Ethical conflicts are also ‘a regular feature of our ethical lives’ ( Wong 1992 : 763). Also, because they tend to involve people with whom ‘continuing relationships are both necessary and desirable’, every effort must be made to find a way either (i) to resolve them, or (ii) if this is not possible (e.g. resolution may be impossible in cases where opinion is deeply polarised) to accommodate the moral differences so that respectful working relationships can continue ( Wong 1992 ). In regard to the latter, Wong (1992) explains:



Living with others in productive ways, despite our moral differences with them, can itself be morally valuable. It can be a particularly strong form of respect for persons, and being able to show this kind of respect is a sign of moral maturity. The willingness to live with others despite moral differences promotes cooperation on the moral ends that are shared. ( Wong 1992 : 774)


Moreover, as also discussed in Chapter 5 , nurses should not be afraid of moral disagreement since, as the history of moral philosophy has long demonstrated, disagreement is often the beginning of our moral thinking, not its end. It can also serve as a kind of ‘quality assurance’ when deciding moral issues as it provides an incentive to those who are arguing competing points of view to ensure (assure) the soundness of their reasoning and the justifications they are putting forward to support their respective stances. Some scholars even suggest that when faced with disagreement, rather than remain steadfast in their moral views, people should reduce the level of confidence they have in them and not merely assume that their views have reasonable unquestionable authority ( Kappel 2018 ; see also the collection of essays in Christensen & Lackey 2013 ). At the very least, when confronted with moral disagreement, people should re-evaluate the basis on which they hold their own moral viewpoints ( Frances 2013 ; Kappel 2018 ). One reason for this, it is contended, is that most people do not engage in sophisticated moral reasoning (conscientious reflection) about the issues they are arguing about; rather, they tend to draw intuitively on personal values and beliefs informed by the norms and culture in which they were raised ( Kappel 2018 ). When encountering a morally troubling situation in the workplace, how, if at all, a nurse will and should ultimately respond to the situation will depend on whether she / he has correctly ‘judged’ what is going on, whether there is a ‘case to be made’ – for or against – taking action, what that action should be, all things considered, and when it should be taken.


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:




  • 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)



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



  • 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)



  • 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:






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



  • 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’ ( 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:




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



  • 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?’



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



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

It is the last – deliberative judgment – which has particular relevance to the issue of moral decision-making in nursing care contexts.


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).




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:




  • 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)



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



  • 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)



  • 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:






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



  • 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’ ( 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:




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



  • 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?’



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



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

It is the last – deliberative judgment – which has particular relevance to the issue of moral decision-making in nursing care contexts.


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 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’ ( 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:




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



  • 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?’



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



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

It is the last – deliberative judgment – which has particular relevance to the issue of moral decision-making in nursing care contexts.


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).




Conscientious objection 1


Statements on conscientious objection and the circumstances in which it might be expressed are reflected in many nursing codes of ethics and related position statements. Their scope, however, varies; whereas some are broad reaching, others are more restrictive and focus narrowly on the areas of abortion and reproductive technology alone. For example, under the ‘Professional behavior’ section (Principle 4.4) of the Nurses and Midwifery Board of Australia (NMBA 2018a) Code of conduct for nurses , reference is made to situations in which conflicts of interest might arise and which ‘might mean the nurse does not prioritise the interests of a person as they should, and may be viewed as unprofessional conduct’. It goes on to advise:



To prevent conflicts of interest from compromising care, nurses must responsibly use their right to not provide, or participate directly in, treatments to which they have a conscientious objection. In such a situation, nurses must respectfully inform the person, their employer and other relevant colleagues, of their objection and ensure the person has alternative care options (p 11).


Similarly, the Nursing Council of New Zealand (2012a) Code of conduct for nurses instructs nurses (Principle 1.9):



You have a right not to be involved in care (reproductive health services) to which you object on the grounds of conscience under section 174 of the Act. You must inform the health consumer that they can obtain the service from another health practitioner.


The UK Nursing and Midwifery Council (NMC), while recognising that there are occasions when nurses and midwives have a conscientious objection to a particular aspect of patient care, is more restrictive. In Section 4 of its Code it states that nurses and midwives who have a conscientious objection must ‘tell colleagues, your manager and the person receiving care if you have a conscientious objection to a particular procedure and arrange for a suitably qualified colleague to take over responsibility for that person’s care’ ( NMC 2015 : 6). There are, however, only two recognised areas in which nurses have a lawful right to conscientiously object: abortion and reproductive technology (NMC www.nmc.org.uk/standards/code/conscientious-objection-by-nurses-and-midwives/ ). This restrictive stance is problematic, as will be considered shortly.


The 2017 revised edition of the Canadian Nurses Association Code of ethics for registered nurses is particularly worthy of note. Whereas other nursing codes primarily situate conscientious objection in the context of reproductive health, the Canadian code contains new content specifically addressing ‘medical assistance in dying’ in direct response to the passage of Medical Assistance in Dying (MAiD) legislation in 2017 (discussed in Chapter 10 ). In contradistinction to other nursing codes, the Canadian Code clearly defines conscientious objection – notably, as ‘a situation in which a nurse informs their employer about a conflict of conscience and the need to refrain from providing care because a practice or procedure conflicts with the nurse’s moral beliefs’ ( CNA 2017 : 21). In Part 1, Section D (‘Honouring dignity’) of the Code, it is stated:



Nurses understand the law so as to consider how they will respond to medical assistance in dying and their particular beliefs and values about such assistance. If they believe they would conscientiously object to being involved with persons receiving care who have requested such assistance, they discuss this with their supervisors in advance. [emphasis original] ( CNA 2017 :13).


In addition, the Code contains a special section on ‘Ethical considerations in addressing expectations that are in conflict with one’s conscience’ in which the steps for declaring a conflict in conscience are outlined ( CNA 2017 : 35–7). Finally, in contradistinction to other codes, the Canadian Code recognises a range of situations (not just those confined to reproductive health care contexts) in which a nurse might have conscientious objection. The Code clarifies:



Nurses may not abandon those in need of nursing care. However, nurses may sometimes be opposed to certain procedures and practices in health care and find it difficult to willingly participate in providing care that others have judged to be morally acceptable. Such situations include, but are not limited to, blood transfusions, abortion, suicide attempts, refusal of treatment and medical assistance in dying. ( CNA 2017 : 35).


Notwithstanding the provisions contained in these codes and other like statements, nurses have been ‘conscientiously objecting’ to workplace practices and related processes for years (e.g. by sidestepping a particular patient assignment, changing shifts, declining to work in a particular ward or area, or taking a ‘sick day’ off work). Their objections, however, have rarely gained public attention. It has only been in extreme situations, such as when a nurse has been dismissed from or denied employment, or has been threatened in some way, that issues involving conscientious objection have come to the attention of others outside of the unit or organisation where they have arisen. Those who have had the courage to formally voice their conscientious refusal to participate in certain medical procedures or organisational processes, or to carry out certain directives given by an employer or superior, have sometimes done so at great personal and professional cost, as the following examples will show. One of the most famous examples of this can be found in the much-cited United States (US) case of Corrine Warthen.


Corrine Warthen, a registered nurse of many years’ experience, was dismissed from her employing hospital of 11 years for refusing to dialyse a terminally ill bilateral amputee patient. Warthen’s refusal in this instance was based on what she cited as ‘ “moral, medical and philosophical objections” to performing this procedure on the patient because the patient was terminally ill and … the procedure was causing the patient additional complications’ ( Warthen v Toms River Community Memorial Hospital 1985 : 205).


Warthen had apparently dialysed the patient on two previous occasions. In both instances, however, the dialysis procedure had to be stopped because the patient suffered severe internal bleeding and cardiac arrest (p 230). It was the complications of severe internal bleeding and cardiac arrest that she was referring to in her refusal. Her dismissal came when she refused to dialyse the patient for a third time.


Believing she had been wrongfully and unfairly dismissed, Warthen took her case to the Supreme Court, where she argued in her defence that the Code for nurses of the American Nurses’ Association (ANA 2015) justified her refusal, since it essentially permitted nurses to refuse to participate in procedures to which they were personally opposed (p 229).


The court did not find in her favour, however, and she lost her case. In making its final decision, the court made clear its position on a number of key points (p 1985):





  • 1.

    An employee should not have the right to prevent his or her employer from pursuing its business because the employee perceives that a particular business decision violates the employee’s personal morals, as distinguished from the recognised code of ethics of the employee’s profession. (p 233)


  • 2.

    [In support of the hospital’s defence] it would be a virtual impossibility to administer a hospital if each nurse or member of the administration staff refused to carry out his or her duties based upon a personal private belief concerning the right to live … . (p 234)


  • 3.

    The position asserted by the plaintiff serves only the individual and the nurses’ profession while leaving the public to wonder when and whether they will receive nursing care. (p 234)



Another notable example of the personal and professional cost a nurse can pay for taking a stand on an issue can be found in the case of Frances Free (also from the US). Free, an experienced registered nurse, was dismissed by her employer after she had refused to evict a seriously ill bedridden patient. Free’s refusal ( Free v Holy Cross Hospital 1987 : 1190), in this instance, was based on grounds that to evict the patient would have been:



in violation of her ethical duty as a registered nurse not to engage in dishonourable, unethical, or unprofessional conduct of a character likely to harm the public as mandated by the Illinois Nursing Act.


The female patient in question had been arrested for possession of a handgun. Meanwhile, an ‘order’ had been given for the patient to be transferred to another hospital. The police officer guarding the patient pointed out, however, that because of certain outstanding matters the other hospital would probably not accept the patient and it was likely that she would be returned to Holy Cross Hospital. Free communicated this information to the hospital’s chief of security who responded by telling her that the patient was to be removed from the hospital ‘even if removal required forcibly putting the patient in a wheelchair and leaving her in the park’ which was across the road from the hospital (p 1189). Although Free disagreed with removing the patient, she gave the necessary instructions for the patient’s transfer to the other hospital.


As part of the process of dealing with this situation, Free contacted the vice-president of her employing hospital to discuss the matter with him. It is reported that the vice-president ‘became agitated, shouted and used profanity in telling Free that it was he who had given the order to remove the patient’ (p 1189). After this incident, Free contacted the patient’s physician who stated that ‘he opposed the transfer’ and instructed Free ‘not to touch the patient but to document his order that the patient should remain at the hospital’ (p 1189). After checking the patient and ‘calming her down’, Free received a telephone call ‘ordering her to report to the office of the vice-president’. When she arrived at the vice-president’s office Free was advised ‘that her conduct was insubordinate and that her employment was immediately terminated’ (p 1189). Free subsequently took court action arguing that her dismissal was ‘unfair’. Free lost her case, however. Significantly, during the court proceedings, Free’s actions were characterised ‘as being of a personal as opposed to a professional nature and therefore as falling outside the scope of the Illinois Nursing Act’ ( Johnstone 1994a : 256).


These and more recent examples demonstrate that the issue of conscientious objection by nurses warrants attention (see, for example, three cases circa 2005–15 involving midwives respectively from Scotland, Croatia and Sweden who conscientiously objected to participating in abortion work; each of the midwives involved faced ‘hostile reactions from colleagues, professional associations and managers’ with two of the cases being escalated to be dealt with by the court system ( Fleming et al 2018 )). In particular, the cases considered demonstrate the need for attention to be given to clarifying the nature and authority of conscience, distinguishing between genuine and bogus claims of conscientious objection, and determining the kinds of policy and protective legislation there should be in regard to those who conscientiously refuse to perform or to participate in morally controversial medical and / or nursing procedures. As well as this, attention needs to be given to the question of: ‘When, if ever, can an employer or manager decently direct nurses to perform tasks which they are conscientiously opposed to performing?’ Similarly, ‘Are nurses morally obliged to follow the policy and position statements of their professional associations if these stand to violate their personal moral integrity?’ An additional question is: ‘Can nurses decently refuse to assist with tasks which others do not regard as morally problematic – particularly if such refusals result in restricting patient access to the treatment and care they are seeking?’ These and other key concerns raised by the conscientious objection debate are addressed in the following sections.


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 ).


Conscience as moral reasoning


Conscience as reasoning takes ‘extended consciousness’ encompassing the gathering of knowledge, rational moral principles and reason as the source of one’s moral convictions ( Damasio 1999 : 232). Conscientious judgments, by this view, are really critically reflective moral judgments concerning right and wrong ( Broad 1940 ; Garnett 1965 ). Rational insight can be either religious or non-religious in nature, depending on what a person’s worldviews are. Either way, a rational conscience typically manifests itself as ‘a little voice inside one’s head saying what one should and should not do’ – also called ‘the “voice” of conscience’ ( Benjamin 2004 : 513) – or, to put this in moral terms, it tells us what our moral obligations and duties are. Statements of conscientious objection then are, by this view, merely statements of moral duty which individuals recognise and commit themselves to fulfil. Whether the duties or obligations identified impose overriding or absolute demands, or only prima-facie demands on the individual, is, however, another matter and one that is considered shortly.


Conscience as moral feelings


There are two possible versions of a ‘moral feelings’ account of conscience – emotivist and intuitionist. Both consist of a tendency to spontaneously experience either emotions or intuitions ‘of a unique sort of approval of the doing of what is believed to be right and a similarly unique sort of disapproval of the doing of what is believed to be wrong’ ( Garnett 1965 : 81).


It is generally recognised that these feelings are significantly different from the sorts of feelings we might have when, for example, looking at a beautiful painting (aesthetic approval) or an awful painting (aesthetic disapproval), or eating a favourite food (the feelings of mere liking) or smelling an awful smell (feelings of mere disliking), or witnessing an act of remarkable human achievement (feelings of admiration) or an act of extraordinary human failure (feelings of disdain). By contrast, in the case of wicked acts or the violation of duty, conscience may manifest itself in strong and distinguishable feelings of moral loathing, disgust, shame, remorse or guilt (see Greenspan 1995 ), or, as Beauchamp and Childress (1989 : 387) suggest, the unpleasant feelings of ‘a loss of integrity, wholeness, peace, and harmony’. To borrow from Fletcher (1966) , conscience can manifest itself as ‘a sharp stone in the breast under the sternum, which turns and hurts when we have done wrong’ (p 54). In the case of virtuous acts, conscience may manifest itself as strong feelings of reassurance or moral goodness ( Fletcher 1966 : 54; Kant 1930 : 130), or, as Beauchamp and Childress (1989 : 387) suggest, as feelings of integrity, wholeness, peace and harmony. Either way, moral feelings instruct individuals on what they ought and / or ought not to do. As with the account of conscience based on reason, statements of conscience emerge as statements of obligation and duty.


Conscience as moral reason and moral feelings


The concept of conscience as a combination of reason and feelings basically involves an integrated response to ‘moral catalysts’ in the world. It does not rely on ‘blind emotive obedience’, as Kordig (1976) calls it, nor on an exclusive and blind devotion to reason. Rather, it relies on the mutually guiding and instructive forces of both moral sensibilities and moral reasoning. This account of conscience is, arguably, the most plausible of the three given, and is thus the one that underpins this discussion.


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.



  • 1

    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:



    • (i)

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


    • (ii)

      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


    • (iii)

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



  • 2

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



    • (i)

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


    • (ii)

      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).



  • 3

    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).


  • 4

    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).


  • 5

    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 to the lawful but morally controversial directives of an employer / manager


Nurses as employees are compelled by the principle of employment law to obey the lawful and reasonable directives of an employer or manager. The problem is, however, that nurses might not always agree morally with the lawful directives they have been given, and thus may sometimes find themselves in the uncomfortable position of having to perform acts which violate their reasoned moral judgments.


Situations involving nurses’ conscientious refusal to follow lawful but morally questionable directives invariably pose the age-old question of whether an individual can, all things considered, be decently expected to follow morally controversial or morally bad, although legally valid, laws – or, in this case, lawful directives.


The problem of legal–moral conflict is not new to philosophy. Questions of, for example, what is the proper relationship of morality to law, what is to count as a good legal system, or whether individuals ought to be compelled to obey immoral laws, have long been matters of philosophical controversy. Hart, an Oxford scholar and professor of jurisprudence, for example, argued over half a century ago that existing law must not supplant morality ‘as a final test of conduct and so escape criticism’ ( Hart 1958 : 598). He also argued that the demands of law must be submitted to the scrutiny and guidance of sound morality before they can be justly enforced ( Hart 1961 ).


In answer to the question of whether an employer or manager can decently direct a nurse to perform a task or procedure to which he / she is genuinely opposed on conscientious grounds, the short answer is no.


It might be objected that permitting conscientious objection is not conducive to the efficient running of hospitals and other health services. There is, however, little to support this kind of claim. In the case of military service, for example, it has been found that objectors are rarely amenable to threats and usually make unsatisfactory soldiers if coerced, and that in fact there are generally not enough objectors to frustrate the community’s purpose ( Benn & Peters 1959 : 193). There is room to suggest that something similar is probably true of objectors in nursing. As many examples in the nursing literature have shown, nurses have preferred to resign and risk dismissal than perform acts which they find morally offensive. Further to this, those nurses who have been coerced have not wholly complied with given orders. It is also unlikely that conscientious objection by nurses would occur en masse, or be in sufficient number to obstruct the efficient running of the hospital system.


Conscientious objection and the problem of conflict in personal values


The ICN Code of ethics for nurses (2012a : 2) states that ‘the nurse’s primary professional responsibility is to people requiring nursing care’. It further states (p 2) that: ‘In providing care, the nurse promotes an environment in which the human rights, values, customs and spiritual beliefs of the individual, family and community are respected’. Sometimes, however, a nurse may find it genuinely difficult to respect a person’s (or a family’s or a community’s) values, customs and spiritual beliefs, and for this reason may decline to be involved in caring for such entities. Consider the following cases.



Case 1


A registered nurse working in a general medical ward was assigned a male patient who was known to be an orthodox Muslim. Upon learning of the man’s religion, the nurse refused to care for him, stating that she could not accept the attitudes of Muslim males towards women, and that if she cared for him she would be as good as condoning his (and his community’s) views.



Case 2


A registered nurse working in an infectious diseases unit was assigned a male patient in the end stages of AIDS. Upon learning that the patient was a homosexual and prior to his illness had been actively involved in the gay community, the nurse refused to accept the assignment. The nurse argued that as a Christian he could not condone homosexuality, and therefore it would be against his religious beliefs to care for the patient.



Case 3


A registered nurse working in a country hospital was asked to admit and care for a patient injured in a fight. When she recognised the patient as a member of a family who had been engaged in a feud with her own family for years, she declined to care for him. She stated as her reason that, were she to care for the man, she would be violating the loyalties she owed to her own family.



All three registered nurses in the cases just given may have each had sincere motivations behind their refusals to care for the patients in question. What is not so clear, however, is whether these motivations have a moral basis. For instance, their refusals to care for these patients seem to be based more on, for example, non-moral personal dislike, prejudice, fear, disdain or mere disapproval than on sincere moral motivation and the desire to achieve morally desirable ends. Second, it is not clear whether, by refusing to care for these patients, the nurses will preserve their moral integrity. Lastly, the professional requirement to care for the patients in question is not itself morally controversial – at least not in the same way that, for example, a request to assist with euthanasia would be.


Although it may be imprudent to compel the nurses in these cases to care for the patients assigned to them, it is not immediately apparent that it would be unethical to do so. It might be concluded then that their refusals can, at least from a moral perspective, be justly overridden. Nevertheless, there may still exist pragmatic grounds for permitting their refusals. If they cannot be relied upon to give adequate care, for example, it might be better to allow their refusal. If their prejudices and personal feelings are of such a nature as to seriously cloud their professional judgments and indeed their ability to care and engage in an effective therapeutic relationship, it may be that they should not be allocated the patients in question. The matter should not rest there, however. The nurses in question will need to account for their actions and, in keeping with professional standards of conduct, undertake professional development including further education (e.g. on cultural diversity and inclusiveness, dealing with conflict, professionalism and professional ethics).


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:




  • 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’).



  • 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.



  • 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.

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Oct 7, 2019 | Posted by in NURSING | Comments Off on Professional judgment, moral quandaries and taking ‘appropriate action’
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