engleski

Conscientious objection in medicine and its effect in criminal law

Conscientious objection may arise when exercising various professions, but today this right is most debated in connection with its use in medicine. The right to conscientious objection of healthcare professionals is a very complex and specific problem that is reflected in everyday medical clinical practice. In general, conscientious objection (conscience clause, refusal clause) means a person's call for freedom of conscience and their refusal to act in a prescribed or agreed manner due to ethical, moral or religious beliefs, thereby requiring them to be exempted from such an obligation. It is about the right and decision of an individual to perform or refuse to perform an action, contrary to the law or other regulation, because it is against their conscience. However, the right to conscientious objection cannot be granted to every person, in every situation and for every reason. Namely, the freedom of every human being is subject to restrictions provided by law in the interest, among other things, of the health and protection of the rights and freedoms of others. Most of the discussions about the right to conscientious objection are caused due to its use by medical staff in cases of so-called negative conscientious objection, ie refusal to diagnose, treat and rehabilitate patients, refusal to participate in scientific research, to prescribe contraception, organ transplantation, autopsy, sterilization, assisted reproduction, cloning, experimenting with embryos, euthanasia, etc. The actuality of the problem stemmed from intensive discussions on conscientious objection and the right to abortion, as the most common reason for objection, and from expanding its application to other areas of medicine. In the latest cases, paediatricians also file a conscientious objection and refuse to treat children whose parents, under the influence of the so-called anti-vaccination campaigns, do not allow vaccinations. Negative conscientious objection (refusal) has reached "almost epidemic proportions" in the world in recent decades, significantly affecting the implementation of health care, and is particularly common in the field of reproductive medicine in the form of refusing to perform certain medical procedures, including legal termination of pregnancy. Opponents of conscientious objection in medicine believe that it is ineffective, inconsistent, reflects inequality and discrimination, and ultimately violates a doctor's professional obligations. Therefore, the question arises as to what effect the conscientious objection of doctors and other health professionals has in criminal law, because under this right an individual is not obliged to comply with legal regulations that are in conflict with their conscience. Thus, conscientious objection has become a special issue in the area of conditions for punishing health workers. The answer can be offered only when it is determined which conscientious objection is justified or valid. Conscientious objection in medicine was introduced as so-called conscience clause which is an integral part not only of codes of ethics but also of constitutional and legal regulation. Thus, due to their ethical, religious or moral beliefs, the doctor has the right to invoke conscientious objection and refuse to diagnose, treat and rehabilitate the patient, if the following legal conditions are met: if the rules of the profession are not breached, if lasting consequences are not caused for the patient’s health or the patient's life is not endangered , if the patient is not informed in a timely manner and if s/he is referred to another doctor of the same profession. The legal system must regulate the conditions for a valid conscientious objection which excludes liability for the criminal offense of failure to provide medical assistance or the criminal offense of negligent treatment. In the theory of criminal law, the question arises whether the conscientious objection of a healthcare worker is a justifiable reason that excludes the illegality of the crime itself or whether it is grounds for excuse which excludes the guilt of the perpetrator.

conscientious objection in medicine ; negative conscientious objection ; punishing healthcare workers ; excludes criminal liability ; grounds of excuse

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