Clause of Conscience of Laboratory Diagnosticians: Between Law and Ethics

A Diagnostician and the Conscience Clause

In order to answer the above questions, first we have to refer to legal and deontological provisions defining the rules for exercising the profession of a laboratory diagnostician. Article 27 of the Laboratory Diagnostics Act says the following:

“A laboratory diagnostician participates in the diagnosis, prophylaxis and in the monitoring of a treatment.” It is also added that: “It is a physician who decides about the final set of tests to be conducted.” This Act also says that: “A laboratory diagnostician is obliged to proceed in accordance with his/her professional knowledge, deontological rules and with due care” (Article 21) [19].

If we analyses the above provisions, we may come to a conclusion that a diagnostician undertakes his/her actions on two “levels.” On the one hand, he/she undertakes professional actions in cooperation with a physician. On the other hand, it is the physician who makes the final decision about the tests to be conducted. As regards the possibility of refusing to conduct specific actions, the Act in question provides under its Article 28 that: “A laboratory diagnostician has the right to refuse to perform the physician’s order if its performance might threaten the life or health of a patient unless the physician having been informed of such a threat, repeats his/her order in writing.” Under paragraph 2 of this provision it is added that: “A laboratory diagnostician justifies his/her refusal to execute/perform the order in writing and he/she immediately informs his/her direct superior thereof.” The Polish legislator also added that a violation of principles governing the exercise of this profession may entail professional liability. As written in Article 56 of the Laboratory Diagnostics Act, “Laboratory diagnosticians are subject to disciplinary liability for improper performance of laboratory diagnosis actions attributable to them as well as for actions contrary to deontological rules or to provisions concerning the performance of laboratory diagnostics actions.” While talking about deontological rules that apply to the exercise of the profession of a laboratory diagnostician [19], we have to mention the Laboratory Diagnosticians’ Code of Ethics (KEDL) [20]. This document refers to the conscience clause which is of interest to us. As opposed to other similar sets of rules, the Code defines the notion of “conscience.” The definition is as follows: “moral awareness of a human being while making a choice (a decision), i.e., inner conviction informing about morality or immorality of a given action.” Paragraph 24 of the Code of Ethics adds that: “In the case of a conflict of conscience, a laboratory diagnostician may refuse to participate in tasks entrusted to him/her, informing the interested parties and his/her superiors thereof explicitly and immediately. “Moreover, paragraph 25 says that: “If the superiors or persons ordering a test exert any kind of pressure, a laboratory diagnostician may address him or herself to their society for help and legal protection” [20].

The analysis of the above fragments of the Laboratory Diagnostics Act and the Laboratory Diagnosticians Code of Ethics shows that the two documents differ significantly as regards the rights of these specialists. As for the diagnostician’s refusal to undertake some actions, the Act allows for this only in the case of medical actions that according to the diagnostician might pose a threat to the patient. The expert then refers to the current medical knowledge that “does not allow him/her” to undertake such actions in a professional way. It is worth noting, however, the inconsistency of such a regulation. On the one hand, a laboratory diagnostician has the right to refuse actions that he/she considers harmful for the patient, on the other; a physician has the right to question the objection of such a specialist. The second refusal in writing transfers the responsibility for such an action posing a risk for the patient’s health or life to the physician. Here, it is impossible not to notice that such an intervention of a physician prevents the diagnostician from fully enforcing the patient’s right to “be provided with medical services carried out with due care by providers of healthcare services under conditions that fulfill health and professional requirements defined in separate provisions.” Article 5 of the Patients’ Rights and the Commissioner of the Patients’ Rights Act (hereinafter the Patients’ Rights Act) referred to say that: “While providing medical services, healthcare professionals shall follow the rules of deontology defined by appropriate self- governments of medical professions”. A laboratory diagnostician is presented as an autonomous profession, but at the same time as an expert subject to actions undertaken by a physician [21]. Such subordination is, in fact, justified. According to Article 2 paragraph 1 of the Doctor and Dentist Professions Act, it is the physician who is the expert responsible for the patient’s treatment. However, it is impossible to forget a very specific situation of consecutive groups of experts without whom such a treatment would be impossible. Right now, it seems impossible to offer antenatal care without detailed information obtained thanks to a laboratory diagnostician. A lack of possibility to refuse to perform the criticized tasks has to be considered as harmful and discriminatory.

When analysing the rules from the Code of Ethics on the performance of the profession of a laboratory diagnostician, it is appropriate to pay attention to the character of these rules that are imperative and attributive at the same time. This aspect shows that each provision has, on the one hand, the form of an obligation: orders to carry out certain actions and, on the other, refer to the rights of a given person. Aleksandra Fry’s says that: “The fact that people have rights means that you can demand from other people to behave in a certain way or to renounce to do something, then other entities you are dealing with have the obligation towards you to behave in a certain way. This means that if somebody is given certain rights, somebody else or others have some duties towards this first person. However, this does not mean that this interrelation works the other way around, i.e. insofar as rights generate obligations, obligations do not define the rights. For example: a patient has the right for respect of his/her privacy, which means that the medical staff have the obligation to create appropriate conditions in which medical services will be carried out. Without a doubt, if a patient has the right to a specific examination, then a diagnostician has the obligation to perform such an examination [22]. In the meantime, it is worth remembering that this diagnostician has rights that are guaranteed by the Constitution, such as the right to the freedom of thought, conscience and religion. Then, it is up to the State to guarantee that such a right will be respected [23].

It is also worth reflecting on the content of the above Laboratory Diagnosticians’ Code of Ethics. This document is of key importance for daily practice of medical experts in question. Following the rules defined therein, the professional self-government has the right to analyse whether a given diagnostician broke the rules he/she is supposed to apply in his/her relations with patients. This Code is connected with laws that in their content mention patients’ rights and freedoms. These documents guarantee that the provided medical services will be consistent with current standards of medical knowledge. It has to be stressed as well that this Code of Ethics also aims at reinforcing the moral development of this profession. The document says that: “a laboratory diagnostician performs his/her duties with a sense of responsibility towards his/her professional self- government ensuring the promotion of impeccable attitudes and professional growth” (para 5). Also that “permanent reflection on the rules of procedure of a laboratory diagnostician shall lead to the improvement of moral and professional attitudes of laboratory diagnosticians” (para.29) this Code is not only a source of specific professional duties; it also constitutes a formal element protecting the personal development of a given person. It can also help when faced with a difficult moral dilemma [24].

New Challenges

When analysing the above reflections in the perspective of practical aspects, it is necessary to pay attention to the spheres that may be the source of special difficulties in the work of a laboratory diagnostician. These difficulties may occur in a situation when the above expert:

• Has to confirm or exclude the existence, e.g. of lethal defects of a fetus that might lead to an abortion,
• Has to participate in such activities as widely understood in vitro fertilization.

Recently, there have been dynamic legislative changes that have allowed, among other things, to use assisted reproductive technology. In Poland, on 22 July 2015, President Bronislaw Komorowski signed the Fertility Treatment Act. This document allows benefiting from in vitro fertilization for free [25]. Under this Act, married people and people living together have been granted this right. In order to be able to benefit from such reproductive techniques, they have to prove that they have been trying to conceive a child using any other technique than in vitro fertilization. NGOs in their analyses showed that this Act contains some alarming provisions [26].

We may list among them the consent to:

• Test embryos,
• Cryopreservation of embryos,
• Implantation of embryos in the body of anonymous recipients [27].

According to Waldemar Glusiec and Elzbieta Puacz, similar procedures may lead to serious moral doubts among laboratory diagnosticians. It is them who, within their work, may be obliged to:

• Examine reproductive cells in order to find out whether a given woman or a man can participate in in vitro fertilization,
• Examine a fetus within the framework of preimplantation diagnosis, or
• Fuse, under artificial conditions, sperm and an egg cell.

Similar situations can cause even greater discomfort for laboratory diagnosticians and they may appear suddenly. The adoption of provisions introducing the in vitro method in Poland can encourage some laboratories to offer this specialized service as well [28]. A given person (i.e. a diagnostician), unexpectedly, can find him/herself in a situation where his/her scope of duties will be broadened to include, e.g. the examination of a patient’s sperm. It is worth noting that during the legislative process concerning the in vitro fertilization, the bill prepared by Boleslaw Piecha, MP, included Article 18 saying that: “No one can be obliged against his/her conscience to participate in a medical procedure of in vitro fertilization” [29].

Moral Summary for the Future

The role of laboratory diagnosticians during treatment is of importance. Every day medicine can locate faster and more precisely the causes of a given disease. Without a doubt, therapeutic methods are also being improved. Similar interventions are often supported with state-of-the-art achievements in biomedical research. For several dozen years diagnosticians have occupied a special place in the medical support for pregnant women. In fact, they are the ones who have the possibility to examine thoroughly the child at a very early stage of pregnancy. Their analyses allow to confirm or to rule out the existence of a disease that may pose a threat to the life of the unborn. Paradoxically, a similar diagnosis very often leads not to start treatment but to decide about the termination of a pregnancy by carrying out an abortion. Pursuant to the Polish statutory law, diagnosticians do not have the right to invoke conscientious objection. However, the Laboratory Diagnosticians Deontological Code offers such a possibility [16]. Moreover, a diagnostician who suffers unfair treatment because of his/her conscientious objection has the right to seek help from the professional self-government. At the same time two important phenomena have to be stressed.

First of all, legal and deontological provisions are contradictory. Referring to the concept of Lon Fuller, they have to be considered as immoral. A diagnostician does not have a formal right to invoke the clause [30]. However, formal legal provisions require him/her to undertake actions in agreement with his/her conscience. Moreover, the patient, who is “judging” the Behaviour of this specialist from his/her perspective, also has the right to expect the diagnostician to perform medical activities according to his/her conscience. This means that while imposing the performance of medical actions against an expert’s conscience, a patient’s rights guaranteed by the law can be thus infringed. It is worth pointing out yet another element. Does the lack of provisions concerning the conscience clause in the Laboratory Diagnostics Act really deprive the diagnostician of the right to abandon some tasks because of a moral conflict? The analysis of the documents binding in Poland leads to a conclusion that the reply to such a doubt is not obvious. As already mentioned above, Article 53 paragraph 1 of the Constitution of the Republic of Poland guarantees everyone the freedom of conscience. Moreover, Article 18 of the International Covenant on Civil and Political Rights says that “everyone shall have the right to freedom of thought, conscience and religion.” Moreover, paragraph 2 of these provisions says that “no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” While invoking the provision included in the above Pact, Andrzej Zoll was right to say that a given specialist (then it was the case of pharmacists) when he/she does not accept a given action, he/she has the right to refer to this regulation [31]. Certainly, a similar rule is in full correlation with the situation of laboratory diagnosticians [32].

It is also important to mention the judgment of the Constitutional Court of 7 October 2015 concerning the physicians’ clause of conscience. The oral justification of the judgment stressed that physicians have the right to conscientious objection not only because this right is provided for in the Physician and Dentist Professions Act. A similar right, according to the majority of judges of the Constitutional Court, does not depend on the Act and is guaranteed by the Polish Constitution. This judgment underlines that in the case of physicians separate legal provisions on the conscience clause were provided for.

because of the specificity of their profession. In other words, these specialists may encounter situations leading to their moral reservations. The right to conscientious objection stems from the very nature of human beings and not from a specific act of law. Defining conscience as a key value directly refers to the sources of human rights [7]. As Wojciech Boloz rightly points out, it is in the human conscience that we should seek the special status of human dignity [33, 34, 35, 36, 37, 38, 39].

The progress of biomedicine inevitably moves consecutive elements of the diagnosis to medical laboratories. The freedom of conscience of employees who work in those places seems to be obvious. It also seems to be obvious that it is necessary to make legal changes allowing to fully exercising this freedom.