The Manx Assisted Dying Bill, which has completed its parliamentary journey and is awaiting Royal Assent, is set to make the Isle of Man the first member of the British-Irish Council and the Common Travel Area to establish a legal regime for assisted dying, although it is likely to be some time before the Act is brought into force. This is an area where the Crown Dependencies have led the way. In this blog I will compare one feature of the proposed legislation for the Isle of Man, Jersey, and Guernsey: how to treat those who conscientiously object to being involved with such a regime.
Of the three, the Isle of Man is most advanced. Jersey, although actively engaged in developing a legal framework since 2021, is on course to have a draft assisted dying bill debated in 2026. Guernsey has, for the moment, turned away from developing such a regime, with a proposal having failed in the States in 2018. Nonetheless, all three have something to offer comparative discussion of the development of conscientious objection to participation in assisted dying. In the discussion that follows I focus on six key questions, the answers to which define the reach of conscientious objection in the different regimes.
Should there be a conscientious objector clause?
As noted above, Guernsey has not developed a full draft law on assisted dying. In 2018, however, a proposal to commission a working party to develop such a draft indicated that they would be required to consider “the numbers and roles of doctors under any proposed assisted dying legislation and whether they would be permitted to have any conscientious objection to an individual’s request”. This was unusually tentative on conscientious objection, and the view of Guernsey parliamentarians was that there had to be a conscientious objection clause, and the proposal was amended accordingly. Even asking the question was seen as crass by some parliamentarians, while others were puzzled that this should be seen as difficult, given existing protection in relation to abortion. As Deputy Brehaut put it: “For many years, some nurses recruited from outside the Island have chosen not to work in the DPU as they are opposed to abortion. Their religious and moral views are respected. We have conscientious objection now; it exists. To imply that this introduces another moral dimension that has not been considered before is incorrect”. He referred here to the Abortion (Guernsey) Law 1997, which provided by section 5 that “no person shall be under any duty … to participate in any treatment authorised by this Law to which he has a conscientious objection”. The current law has been modified by the Abortion (Guernsey) Amendment Law 2021, but this part of the section remains unchanged.
The need for a conscientious objection clause was taken as read even more in the Isle of Man and Jersey, both of which have similar precedents around abortion law to draw upon. Section 8(4) of the Manx Bill, which deals with how an objection is proven, is based on the (Manx) Abortion Reform Act 2019 s.8(3). The Termination of Pregnancy (Jersey) Law 1997 art.5 provides for conscientious objection to participation in treatment under the Law, and has influenced the draft Bill in s.36-39.
This may have been taken as read simply because the arguments to allow some people to be excused from some duties related to assisted dying are seen as compelling. There may also be a parliamentary reason. There is substantial evidence that some legislators across the Crown Dependencies had objections based on religious or philosophical values to the creation of an assisted dying regime. Legislators with these objections may, understandably, be particularly attuned to the impact on those involved in carrying out the regime who share their objections. On occasion, this affinity is made explicit. In the debate over the Guernsey proposal in 2018, for instance, Deputy Kuttelwascher began his list of objections to third party involvement in suicide as “[m]y first conscientious objection” . More generally, if a legislator believes it is morally or religiously wrong to allow assisted dying, it will be easy for them to imagine the situation faced by a practitioner who has a moral or religious objection to being involved in the process. If we adopt the maxim of Lord Thring, first Head of the UK Parliamentary Counsel Office, that “Bills are made to pass as razors are made to sell”, other legislators may be particularly keen to accommodate this as a concession not simply to the conscientious objectors, but to other legislators with a vote in the process.
What basis for the objection is required?
Abortion law in both Jersey and the Isle of Man has a clause allowing exemption from legal duties on the basis of “conscientious objection” (in the Isle of Man in the Abortion Reform Act 2019 s.9; in Jersey in the Termination of Pregnancy (Jersey) Law 1997 art.5(1)). Both the Manx Bill and the Jersey proposals on assisted dying depart radically from the model of conscientious objection that prevails in their abortion law.
At first glance, the Manx Bill does not seem a significant departure. Section 8(1) provides that “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection”. During legislative debate, concerns were expressed that doctors may wish not to be involved in assisted dying for reasons not based on a conscientious objection. This was partly met by providing a very clear mechanism for the objecting person to claim this right without possibility of challenge, adopting the earlier provisions of the Abortion Reform Act 2019 s.8(3) in allowing a sworn statement by the person to be conclusive proof that an objection existed. The section as a whole makes it clear, however, that this goes beyond conscientious objection.
Section 8(2) and 8(5), discussed below, refer to the position of a healthcare professional “who has a conscientious objection under subsection (1) or who otherwise does not intend to exercise functions under this Act”. Section 8(3), discussed below, details the protection available to a person who faces employment sanctions “as a consequence of their having a conscientious objection or otherwise not intending to exercise functions under the Act”. Section 8(4), the provision allowing an oath to be conclusive evidence of an objection refers to the person having “a conscientious objection to participating in anything authorised by this Act or that they otherwise do not intend to exercise functions under this Act”.
Thus, despite the familiar wording of s.8(1), with its family resemblance to the Abortion Act, and the section title of “Conscientious objection”, Section 8 goes well beyond conscientious objection, to protect a decision for any reason not to be involved in assisted dying. To borrow from Jersey, this might more aptly be described as a right not to participate clause, rather than a conscientious objection clause.
In Jersey, in 2021, in P95/2021, the States indicated that any assisted dying law should include “a conscientious objection clause”. The principles adopted in 2024 under P.18/2024 were, however, wider: “In accordance with the Assembly’s decision, the Law will explicitly provide that no person can be compelled to directly participate in the assessment, approval or delivery of an assisted death either on the grounds of conscientious objection or any other grounds i.e., there is a right to refuse to directly participate on any grounds (for example, emotional impact on the professional or potential impact on the professional’s other patients) not just on the grounds of conscience or belief” (my emphasis added). This appears in the draft Bill, where art 36(1) states “A person acting in a specified capacity may, on any grounds, refuse the specified participation in assisted dying unless an exception applies”.
Does this matter, given that any conscientious objection will, ipso facto, fall within an intention not to exercise a function under Manx law, or an objection on any grounds under Jersey law?
On the positive side, it sidesteps any doubts as to whether particular objections are, or are not, conscientious. An objection to ending life because of a doctor’s beliefs in the teachings of the Catholic Church, for instance, are very likely to be classed as conscientious objection. But what about a belief as to the essential nature of the relationship of a doctor with their patient? This could be a live issue for practitioners, but there could be debate as to whether participation in assisted dying burdens the doctor’s conscience in the same way.
This approach, however, allows an objecting person completely free judgement as to the basis of their protected objection. I have discussed elsewhere particular concerns about smallness and rurality in relation to assisted dying. A doctor who is concerned that they will be shunned by family members of a person they have assisted to die can refuse on the basis that they wish to avoid social awkwardness in a small community for decades to come. A doctor who is concerned that they may face a reduction in patient lists if they offer the service can refuse on the basis that it damages the sustainability of their practice. A pharmacist who sees the opportunity to renegotiate their remuneration by refusing to follow instructions from their employer to participate without a substantial additional payment each time they do so can refuse as part of their negotiation strategy.
The point in all these examples is that limiting the right to object to “conscientious objection” included an element of a balance between the harm to the individual who sought to object, and the broader social goods the legislation is intended to secure. Removing this means the balance may be sought elsewhere – in the case of the Jersey principles, as discussed below, by restricting the sort of activity to which a person may object.
More theoretically, does a protection as broad as the Manx law and Jersey principles actually constitute a conscientious objection clause? It undoubtedly provides a framework by which conscientious objectors can seek protection, but it is not limited to them. The same may be said of any law which can be freely opted into or out of. In relation to organ donation for instance, the (Manx) Human Tissue and Organ Donation Act 2021, contains no reference to conscientious objection, but allows a person not to consent to particular use of their corpse (Human Tissue and Organ Donation Act 2021, s.10(6)). A religious objection to being an organ donor will thus be accommodated by treating the person exactly the same as every other person, rather than providing special accommodation for their religion or belief.
What protection should a conscientious objector clause offer?
In Jersey, the report adopted by P.18/2024 makes a broad, but vague, commitment that “health and care professionals cannot be discriminated against”. The draft Bill is unclear to me – the relevant clause requires “an employer” to “ensure that there is no employment detriment to their employee”, but states that there is an employment detriment if “the employer decides not to employ them or end their employment” (art. 38(2)). These are two very different things. If an organisation decides not to employ me, how am I thereby their employee?
The protection offered by the Manx Bill, similar in scope to that offered in relation to abortion across the three jurisdictions, clearly relates only to persons already in employment. Section 8 provides that “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection” (s.8(1)). So a conscientiously objecting person, who would normally be under a duty to be involved in assisted dying because of their employment contract, cannot be required to do so. Neither can this refusal to comply with their contract result in either termination of their employment, or their being “treated less favorably in the course of that employment” (section 8(3)). Nothing in section 8, however, prevents an employer from refusing to employ a person because of their position on participation in assisted dying.
If the Jersey legislation may go beyond the rights of current employees, it definitely covers an entire area not covered by the Manx legislation. Article 39 provides protection for residential tenancies, including not just current tenants but prospective tenants. It covers not only refusal to agree a tenancy, or termination of a tenancy, because of participation or otherwise in assisted dying; but also prohibits “the landlord of the relevant agreement [preventing] them from having an assisted death in the place they occupy under the residential tenancy” (art 39(2)(b)).
What sort of person should be able to make use of a conscientious objector clause?
The Manx Bill differentiates only slightly between different types of worker. The protection noted above applies to “any person” required to “participate in anything authorised by this Act” (s.8(1)). For health care professionals, and only for health care professionals, exercising the right creates a secondary duty under s.8(5): they must “(a) without delay inform the person requesting assistance that they have a right to see another health care professional; and (b) ensure that the person has sufficient information to enable to them to exercise the right mentioned in paragraph (a)”.
The Jersey principles under P.18/2024 were similar, and in particular envisaged a similar duty to refer to another health professional. The 2021 vote had emphasised the need for conscientious objection for “any registered nurse, medical practitioner or other professional”, while the report underpinning P.18/2024 indicates that “no person can be compelled to directly participate”. The draft Bill distinguishes between different rights not to participate based on the person’s role in the assisted dying process (see the detailed table at s.36(1)). In some cases, this completely removes the right to refuse to participate – for instance for an assisted dying practitioner other than the administering practitioner. A health professional who does not give a patient requested information on assisted dying must refer them to the assisted dying service (art. 36(3)). Focussing on the administering practitioner, they may refuse to administer the approved drugs themselves; but this right to refuse does not apply where they had previously agreed to do so in the patient’s care plan; or doing so is required to deal with a medical complication following self-administration (art. 36(1)).
What sort of activity can they conscientiously object to?
Here we may see an important distinction between the Manx Bill and the Jersey principles.
The Manx Bill applies to “participation in anything authorised by this Act” (s.8(1)).
Participation is likely to be read in line with Janaway v Salford Health Authority (1988), where the House of Lords considered whether a health authority secretary required to type a letter of referral for an abortion fell within the statutory protection of conscientious objection which allowed her to refuse to “to participate in any treatment authorised by this Act” (Abortion Act 1967 .4(1)). “Participate in” was to be given its natural and ordinary meaning of taking part, and so it could not be said that typing a letter was participation. The secretary was excluded from the protection of the section because of the need for this participation to be with “treatment”. In the later case of Doogan (2014) Lady Hale distinguished between medical treatment and “the host of ancillary, administrative, and managerial tests that might be associated with [treatment]”.
The Manx Bill, however, is not limited to participation in treatment, but rather “anything authorised by this Act” – wording that Lord Keith, delivering the judgment of the House of Lords in Janaway, felt would have brought the secretary within the protection of the conscientious objection clause (at p.570). I see two possible readings. The first is that, but for the Bill, the activity which the person is asked to be involved in would carry no authority, and may even be unlawful. The second is that the activity is one which is a sine qua non for the completion of assisted dying under this Bill. Let me give two concrete examples of why this might matter.
Firstly, the Bill only allows the assisted dying regime to be accessed when a person has made and signed a declaration to that effect in the presence of a witness who is not a relative, directly involved in their care or treatment, or who will gain financially in the event of the person’s death (s.6(1)). Consider a scenario where the person’s firm of advocates provides such a witness by sending a paralegal to sign the declaration. If such a paralegal has a conscientious objection to acting as a witness, and is dismissed for refusing to do so, are they protected by s.8? It feels a stretch to say that acting as a witness has authority only because of the Bill; much less of one to say that for someone to act as a witness is a sine qua non for the delivery of assisted dying.
Secondly, the Bill requires that the substance approved to assist dying must be dispensed and delivered to the person seeking assistance, and the assisting health care professional “remain with the person until the person has (a) self-administered the approved substance and died or it is determined by the assisting health professional that the procedure has failed; or (b) decided not to self-administer the approved substance”. Consider a scenario where the person is a tenant in a property, and whose tenancy gives them very broad rights to use the property, and to have guests; or a care-home resident whose agreement with the care home gives similarly broad rights. If the landlord or care-home operator has a conscientious objection to their property being allowed for assisted dying, and violates the lease or contract by preventing the health care professional entering the premises in order to deliver the approved substance and then remain through the death, are they protected by s.8? Again, it feels a stretch to say that the activity has authority only because of the Act – the right of the person to take deliveries and guests at the address is contained in a legal document inter partes. But without the landlord or operator complying with that legal document, the assisted dying would not occur when and where it did – once again, it is a sine qua non for the delivery of assisted dying.
On balance, I am swayed by the obiter dicta of the House of Lords in Janaway to read “participate in anything authorised by this Act” as including everything required by the Act for a lawful assisted dying to take place. Thus, in the examples above the objecting paralegal, and the objecting care-home operator, would both be protected from legal action for their not honouring pre-existing legal obligations which would require their participation in the assisted death.
The Jersey principles took a different approach, driven by a recognition of the breadth of protecting any objection to participation, rather than conscientious objection to participation. The protection would apply only to “direct participation”, and not at all to indirect participation. Protecting indirect participation was seen as potentially having “the effect of negating the underlying policy intent (i.e. the service could not be delivered if ancillary tasks were undertaken)”. The report gives four examples of work duties which would be too indirect to be protected:
- “providing usual nursing, medical or personal care to a person who happens to have requested an assisted death (for example, a care home could not refuse to care for a resident because that resident wants an assisted death; an ambulance or patient transport driver could not refuse to transport a patient to an assisted dying appointment)
- related administrative tasks (for example, providing patient records to an assessing doctor, booking appointments for additional assessments, ordering equipment or undertaking residency checks)
- related management or governance tasks (for example, refusing to act as a Responsible Officer for an assisted dying doctor, or refusing to undertake financial planning tasks associated with the delivery of the service).
- delivery of equipment or medical supplies that may be used for the purpose of an assisted dying assessment or the delivery of an assisted death.”
The Jersey principles dealt specifically with landlords and care operators allowing assisted death on their premises. The right to conscientiously object would extend to registered providers of regulated adult care home services, but not “to any Government of Jersey premises or private landlords”. The right would apply only to the provision of an assisted death on the premises: “So, for example a resident of a care home could have an eligibility assessment or assisted death care planning meeting on the premises, but the care home provider may choose not to permit a resident to have an assisted death in their room”. We could query the robustness of the distinction between direct and indirect participation, but even accepting this, it is difficult to see how the nature of the owner or operator alters whether allowing an assisted dying to take place on their premises is direct or indirect participation.
The distinction between direct and indirect participation has largely been dropped in the draft legislation. Instead we see a statement that “a person who is not acting in a capacity specified in another row [of the table] may refuse any participation in assisted dying” (art. 36(4)(a)), but the meaning of participation in art. 37 is then expanded to effect a distinction between protected and unprotected activities.
Article 37(1) lists “some activities that are participation in assisted dying”: This includes giving information about assisted dying; acting in the role of an assisted dying practitioner, a certifying doctor or care navigator “if not already in that role”; giving relevant opinions; providing independent advocacy or communication support; preparing or being present during preparation of any equipment used to administer drugs; administering or being present during administration; and “providing a care home whose service is not provided by Health and Care Jersey as the place for an assisted death, despite paragraph (2)”.
Paragraph 37(2) similarly lists “some activities that are not participation in assisted dying”. The broadest is providing the patient with a service that would be provided to a person who has not requested assisted dying, which is itself expanded with a set of examples such as a care home service or physiotherapy; “driving them somewhere”; reserving an appointment time for them; giving any existing information about them to someone; cleaning a room after their death; or dealing with their body after death. Another example is providing a clinical service not directly related to assisted dying, such as cancer care. The final is “providing management, supervisory, administrative, or other services related to the general provision of assisted dying”, again expanded with the examples of acting as a responsible officer for an assisted dying practitioner, acting as a member of the Committee or Review Panel for the regime; managing, supervising or financially planning the Service; collecting or analysing statistical information about the Service; or cleaning the services offices.
The draft Jersey Bill, then, makes a crucial distinction between activities classed as participation in assisted dying and those which are not. It provides considerably less protection than the Manx law. Given the importance of the distinction for an individual seeking to exercise a right not to participate – which it will be recalled may thereby be a breach of their employment contract – the approach in the draft Bill is unhelpful. Neither the list of activities protected under art. 37(1), or excluded from protection under art. 37(2) are claimed to be exhaustive, and no overarching principle is included in the legislation for determining whether or not an activity is participation.
What about conscientious participation?
The Manx Bill provides protection for a health care professional who registers their intention to exercise functions under the Act. Section 9(5) provides that a health care professional must not be subject to having their employment terminated, or being less favorably treated in the course of that employment “as a consequence of their exercising or intending to exercise functions under this Act”. This protection applies only to members of the health care professions listed in section 9(2), and does not apply to decisions to offer employment to such a person. So the Bill does not protect non-health care professionals from dismissal because of their involvement in assisted dying – although it may be possible to draw on broader employment law rules in some cases – or health care professionals from non-appointment.
The Jersey principles contained a commitment in the report adopted by P.18/2024 to ensure “legal protection so that health and care professionals cannot be discriminated against on the basis of their decision to either participate, or not participate in, assisted dying”.This is covered in the draft Bill, with art.38(1) requiring an employer to ensure no detriment to their employee for “involvement in an assisted dying process or “refusal to participate in assisted dying under article 36”, and similar protection for tenants in article 37.
Concluding thoughts.
Jersey, Guernsey, and the Isle of Man have much in common beyond their position as dependencies of the Crown. In particular, as small island democracies they face practical challenges not shared by their larger neighbours. These similarities do not necessarily lead to identical laws being passed to deal with these challenges. In the area of assisted dying, we can see important differences in relation to conscientious objection, particularly around what activities are covered by the right not to participate, and coverage of residential tenancies rather than just employment contracts. We also see striking similarities, particularly in the extension of protection beyond conscientious objection to objection on any grounds. As noted earlier, there is a case for arguing that neither regime has a conscientious objection clause per se; but instead seeks to protect conscientious objectors from harm by a much broader right not to participate.
I am grateful for the comments of Dr Achas Burin on an earlier draft of this blog.
Peter Edge's Law Blog. 