Aborting Doctors' Rights to Freedom of Thought, Conscience and Religion: Has the Medical Council Gone Too Far?

Abstract

This paper considers the issues in an upcoming judicial review case brought against the Medical Council by a group of Wellington doctors. The Medical Council’s proposed Beliefs and Medical Practice statement is being challenged on the grounds that it breaches doctors’ rights to freedom of thought, conscience, and religion, as well as the right to a conscientious objection. The part of the Medical Council’s statement that is being challenged concerns the situation where a doctor is faced with a pregnant patient who is unsure about continuing with her pregnancy. The requirement in the proposed statement is that, regardless of personal beliefs, the doctor is required to either advise or refer. This means the doctor must advise the patient on all the options available to her, including abortion. If the doctors objects to providing this medical advice, the doctor is required to refer the patient to another doctor who is willing to advise on abortion. This paper finds that this requirement, to advise or refer, breaches doctors’ rights to manifest religion or beliefs under s 15 but that this breach is justified under s 5 of the Bill of Rights Act 1990. This paper also concludes that a duty of referral is consistent with the statutory right to a conscientious objection.