THE CONSCIENCE CLAUSE IN POLISH LAW

Por

KRZYSZTOF WOJTYCZEK

Jagiellonian University

[email protected]

Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 23 (2010)

INTRODUCTORY REMARKS

The conscience clause may be understood as a legal provision exempting an individual from a legal duty that contradicts his moral convictions. The legal enshrinement of the conscience clause implies that the moral concept of conscience wins a legal dimension (1) and becomes a legal term that has to be referred to in the evaluation of conformity of human behaviours with legal rules. In this way the reference to conscience is an instrument that enables the legislator to adjust the legal system to the various moral convictions of the individuals.

The conscience clause may function in different legal contexts. The character of the legal duty that collides with moral beliefs may vary, depending on the nature of the other legal subject in favour of whom the duty was imposed. The duty may be a public law obligation to the state, imposed by a legal rule. This may also be a duty to an other individual or a private body. In this second case, the legal obligation may be imposed either directly by a legal rule or may result from a contractual relation between the individual and the other legal subject. Hence, one can distinguish two kinds of conscience clause: a “vertical” conscience clause and a “horizontal” conscience clause. A “vertical” conscience clause has effects in relations between an individual and the state (or other public authorities) and exempts the individual from a legal duty to the state (or other public authorities). The “horizontal” conscience clause has effects in relations between an individual and an other individual or a private body and exempts the individual from a duty to this physical or legal person. The conscience clause in this second context is an important instrument of implementing constitutional rights in “horizontal” relations, i.e. relations between individuals and private bodies. The “horizontal” conscience clause may play an especially important role in relations between the employee and the employer. The legal duties of the employee correlate with the general right of the employer to direct his company. In this last case, the conscience clause limits the scope of the authority of the employer over the employees and exempts the latter from a duty imposed by an instruction given by the former.

The conscience clause applies in the case of conflict between legal duties and morality and exempts from legal duties that contradict deep moral convictions. The conscience clause should not be invoked without serious moral reasons. In case of dispute whether the conscience clause was properly applied, the court has to verify whether its application was really supported by deep and strong moral convictions of the person who invoked it. A conscience clause must be tailored very carefully in order to take into account conflicting values and interests and to strike a proper balance between them. The problem becomes particularly acute when a minority professes strong moral convictions that contradict general obligations imposed to ensure the very functioning of the state.

The attitude towards the conscience clause reflects a deeper social philosophy and especially the conception of relations between the society and the individual. There are at least three possible foundations of the conscience clause. The conscience clause stays in harmony with the liberal social philosophy stressing the importance of freedom and moral autonomy of the individual. From this perspective the state should remain neutral in moral disputes and allow everyone to live his own life according to his ethical beliefs as long as he does not harm other individuals. (2) The liberal ethics stressing the importance of free moral choice is a strong advocate of the conscience clause. If all moral beliefs should, in principle, be treated as equal and their observance is a question of free individual choice, is it right to impose on someone duties that are incompatible with his deepest moral convictions, if the personal adhesion to these moral principles does not harm anyone? From this perspective, for instance, the choice of the mother should be admitted to the same extent as the choice of the physician. If the mother, according to this viewpoint, could decide freely whether to carry her baby, the physician should also be allowed to decide freely whether to perform abortion or not.

The conscience clause may be founded on a cognitivistic and objective approach to ethics, such as the one in Christian ethics, stressing the importance of the importance of individual conscience in discovering and observing the objective moral norms. If one recognizes this fundamental role of human conscience, he also recognizes the right to freedom from legal obligations violating the conscience. The main difference between liberalism and Christian ethics resides in the role of the individual conscience. In liberal ethics the individual conscience is the highest authority that decides of the content and validity of moral norms that the do not have any objective status independent from the individual choice but always reflect subjective conceptions of the individuals. In Christian ethics, freedom of conscience is the fundamental precondition for the individual quest for truth; the conscience is the highest moral instance a person should obey, even if in a particular case this leads to a violation of an objectively valid moral norm. (3)

The conscience clause may also be justified on pragmatic grounds as an instrument of managing ethical pluralism in contemporary societies. The conscience clause ensures the protection of the minorities professing moral beliefs diverging from the dominant ethical convictions that easily find their reflection in the content of law. The legal recognition of the conscience objection by the way of introduction of a conscience clause reinforces the legitimacy of the state and the law as it prevents situations in which an individual is forced to act against his deep moral beliefs. More the minority raising the conscience objection is small, the smaller is the impact of its potential negative effects for the community. If the number of persons invoking the conscience clause is very limited, its potential negative impact on the community is insignificant. More the number of those raising the conscience objection is important, more the democratic legitimacy of a legal obligation is fragile. If the number of opponents to a legal obligation on moral grounds is considerable, only an imperious necessity to protect the society may justify its validity.

The rejection of the conscience clause reflects a collectivistic orientation in social philosophy. Such an approach matches with the Enlightenment project, i.e. the project to create a good society. The realisation of this project presupposes a transformation of man by law according to some preconceived ideas. Law is an instrument that arbitrarily remodels human nature, adapts it to a moral ideal and serves to advance a specific conception of social ethics. The lack of any conscience clause means that the pre-conceived social project may be legally enforced against the deepest moral convictions of an individual. The community and its rights are placed above the individual as the individual autonomy is limited and subordinated to collectively defined goals. The moral ideals of the majority are enforced against fundamental moral objections of philosophical minorities. Paraphrasing an (in)famous statement of a French MP in 1981, one may summarize this approach by the following maxim: “You are morally wrong because politically you are in minority”. (4) The opposition to the conscience clause is deeply antiliberal in its essence.

The conflicts between law and conscience may appear in almost all spheres of life but the problem is particularly frequent and acute in three areas: medical services, military obligations and journalism. The conscience clause in the field of military services is currently well established and loses its importance as a growing number of European states are giving up the compulsory military service. The conscience clause in the press law exists only in some countries (for instance in France). In Poland the question of the conscience clause for the journalists was raised only very recently.

The conscience clause is particularly important in the field of medical practice as the modern medicine moves from a health oriented approach towards a well-being oriented approach, for with scientific progress the medical knowledge may be used not only to cure diseases but also to manipulate the human body in order to improve the well-being and satisfying the wishes of the individual. In such a context, there is a growing pressure on the physician to use the medical knowledge and methods to satisfy the wishes of the individual, and with a growing demand a market of such services is rapidly developing. This is the so-called phenomenon of the medicine of desires. (5) In such a situation the paths of medical practice and traditional ethics are constantly diverging (6). This opens the way to the phenomenon of “moral dumping”, according to the following logic: less scrupulous the physician, the broader the possibilities to take advantage of lucrative market segments.

One has to add that the main threat to fundamental rights comes today not from the state but from employers. The employers impose increasingly acute and often illegitimate limitations on the exercise of fundamental rights by their employees. There is an urgent need to protect human rights of the employees in their relations with their employers. The conscience clause may be an important instrument of implementing freedom of conscience in labour relations, protecting the employee from illegitimate encroachments by the employer.

1. The Conscience clause in the Polish Constitution

1.1. The Constitutional basis for the conscience clause

The problem of the conscience clause is addressed expressly in the Polish Constitution only insofar as it concerns the military service. According to art. 85 par. 3 any citizen whose religious convictions or professed moral principles do not allow him to perform military service may be obliged to perform a substitute service in accordance with principles specified by statute. This provision should be placed in the context of the preceding provisions of art. 85 par. 1 and 2. According to these two provisions, the defence of the motherland is a duty of the Polish citizen and the scope of the obligation of military service should be determined by statute. The article 85 par 3. is thus an exception to a constitutional duty expressly imposed on the citizens and may not be rightfully invoked to argue that constitution-makers intended to exclude conscience objection in all other cases (argumentum a contrario).

As far as it concerns other cases of conscience objection, the question of the constitutional legitimization of the conscience objection should be solved on the basis of general constitutional provisions. The Polish Constitution contains several provisions that may be of relevance for the discussed topic. Firstly, the art. 30 of the Constitution says that innate and inalienable dignity of man is the foundation of freedoms and rights of the man and of the citizen. Secondly, according to art. 31 par. 1 human freedom shall be protected by law. Thirdly, according to art. 53 everyone shall have freedom of conscience and religion guaranteed. Furthermore, the art. 2 of the Constitution states that the Republic of Poland shall be a democratic state ruled by law (a democratic Rechtsstaat).

As stated above the Polish Constitution protects human dignity. The protection of human dignity supposes that the state has to take into account deep moral convictions of the individuals and has to accommodate these different beliefs in legislation. Imposing legal duties that violate fundamental moral convictions of the individual is clearly a violation of human dignity unless a very precious constitutional value legitimizes such a limitation of freedom.

The Constitution of Republic of Poland protects in art. 31 par. 1 freedom in general. The constitutional protection of freedom means, in praxis, that any limitation of freedom should fulfil the requirements established in the art. 31 par. 3 of this legal act. Any limitation of freedom should thus be compatible with the principle of proportionality, with the obligation to respect the essence of different constitutional freedoms and rights and should advance the protection of values enumerated in provision of art. 31 par. 3 (state security, public order, environment, health, public morals, freedoms and rights of the others). One has to add that proportionality in Poland in understood in a similar way as in German law and encompasses three more specific conditions: 1) the limitation on a right should be an efficient instrument to achieve the aim pursued, 2) it should be necessary (the state organs has to choose the least restrictive means) and 3) it should be proportionate in the strict sense (the proportion between the objective pursued and the social costs of the limitation should be observed). If a legal duty imposed on the individual should meet these different tests, it is always necessary to verify, among other, whether there are less restrictive alternatives to attain the aim pursued (alternatives admitting a conscience clause) and whether the values protected by such a legal duty are so important and precious that this legal duty requires a universal application and can not admit any exceptions. From this perspective the recognition of the conscience objection in “vertical” relations (State-individual) appears to be a normal situation in case of moral dissent, and it is up to the state to justify a legal duty that must be imposed and enforced without any exceptions in such cases.

The Polish Constitution guarantees freedom of conscience and religion. The freedom of conscience means not only the right to choose one’s worldview or philosophical and moral convictions and to be free from external interference with that choice but also freedom from external interference with living according to one’s deepest moral convictions. The Constitutional Court explained the meaning of freedom of conscience in its judgment of 15 January 1991, U 8/90, in which it declared compatible with the Constitution a provision of a regulation issued by the Minister of Health and Social Assistance recognizing: 1) the right of a physician not to deliver to the mother a certificate necessary to get an abortion and 2) the right not to perform abortion. (7) The Court stated that “freedom of conscience does not only mean the right to adopt a determined worldview but above all the right to act according to one’s own conscience and the freedom from constraint to act against one’s own conscience.” (8) This freedom, of course, is not absolute and may be restricted but any restriction should meet the different tests presented above.

1.2. The problem of third-party application of the freedom of conscience

As stated above, the conscience objection in vertical relations has a constitutional foundation but its precise scope may be subject of disputes. The question of the constitutional foundation for the horizontal conscience clause is much more delicate for several reasons.

Firstly, such a clause would apply to situations of conflict between two different rights of the two different persons. This pertains especially to labour relations. On one hand, the employer may claim his economic freedom and run his business, awaiting from his employees that they obey his instructions. On the other hand, the employee claiming his freedom of conscience expects that the employer respects his deep moral convictions and refrains from assigning him duties that contradict these convictions.

Secondly, the prospects of a potential conflict are much more frequent than in relations between the individual and the state as the control of the employer over the employee’s life is tighter that the control a democratic state exercises over the citizens.

Thirdly, it is more difficult to strike the proper balance between two conflicting rights in question and the reason to refuse to obey an order given by the employer must be recognized as a particularly serious one.

One has further to notice that the question whether constitutional rights have a horizontal effect was an object of academic disputes in Poland. Some of the scholars deny such a horizontal effect, most of them without giving arguments for their assumption. (9) Some scholars defend the opposite view. (10) This last position is supported but two main arguments. Firstly, the Polish Constitution says expressly in art. 31 par. 2 that everyone has to respect the freedoms and rights of the others. If this provision does not give horizontal effect to constitutional rights then what would be its function and meaning? The will of enforcing constitutional rights in horizontal relations was expressed here in the clearest way.

Secondly, the constitutional provisions guaranteeing rights are worded in two different ways. Some provisions are clearly addressed to the public authorities and are clearly limiting the scope of the debtors of rights to those authorities. Some rights are guaranteed without pointing at the right’s debtor. For instance in art. 40 the Constitution says briefly that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”. (11) The distinction between the two types of rights clearly indicates that the rights whose debtor is not clearly determined may be asserted against anyone, including private entities. If all the constitutional rights had to be limited in their effect to their vertical relation such a distinction would be irrational.

It is also worth noting here the content of the art. 32 par. 2 sentence 2: “No one may be forced to do what is not prescribed by law.” This provision is placed immediately after the provisions imposing on everyone the duty to respect the rights of the others. This implies the constitution-makers thought of its application also in horizontal effects: no public or private entity may force anyone to do what is not imposed by law. This provision states the evident principle that any obligation, either in vertical or horizontal relations, should have a legal basis.

This analysis leads to the conclusion that constitutional rights in Poland actually have a horizontal dimension. This horizontal dimension should be limited to the negative obligation not to interfere with other rights, unless the Constitution clearly imposes positive obligations in horizontal relations. Only very few constitutional provisions (such as the art. 66 par. 1 and 2 pertaining to some rights of the employees) could be understood as a legal basis for positive obligations in relations between individuals and private entities but they always require a specification in ordinary legislation.

The horizontal dimension of the constitutional rights should be take into account in particular in relations between the employee and the employer. The employer has to respect the constitutional rights of the employees, including his dignity and freedom of conscience. The main point of dispute is what freedom of conscience in horizontal relations precisely means. It is obvious that the employer may not infer with one’s religious beliefs and may not prevent his employee from practicing a religion of his choice and from attending religious services out of the working hours. It is not clear whether constitutional freedom of conscience encompasses the right to freedom from duties that deeply violate the deep convictions of the employee concerning fundamental ethical questions. In the opinion of the author of this text, the arguments for a positive answer to this question seem to prevail. In exceptional circumstances, the employee should be allowed to invoke his freedom of conscience even without additional statutory basis to refuse to obey orders from his employer that very seriously violate his conscience. This general principle should be accepted, even if its application may raise serious problems, as the question whether, in a particular case, the employee may disregard a particular order of his employer may be strongly disputed.

1.3. The conscience clause and the problem of conflict of constitutional rights or principles

The problem of the conscience objection is particularly acute when a contested legal obligation is an instrument of ensuring a constitutional right claimed by a person seeking the enforcement of that obligation. This is may be the case of the conscience objection in the field of medicine if a claim to medical or paramedical service is based on a constitutional right and at the same time this claim collides with moral convictions of the physician.

In Poland several constitutional provisions may be invoked – rightly or wrongly - to justify claims to obtain medical or paramedical services. As noted above, the Constitution contains a general provision protecting freedom (art. 31 par. 1). It is obvious that this provision protects i.a. personal autonomy in the field of health and reproduction, the Constitution does not determine, however, the weight of this right.

Furthermore its art. 47 the Constitution states that “every one shall have the right to legal protection of private and family life, honour and reputation and to decide on his personal life”. The decisions concerning personal life include, of course, decisions concerning conceiving children. One has to note that taken literally the constitutional right guaranteed in art. 47 is negative right. The role of the state is to refrain from interfering and to ensure protection from interference by other persons. The right to make decisions about one’s personal life does not allow to claim assistance from public authorities in carrying out the decisions taken. This pertains also to assistance provided by physicians. The Constitution may not be rightfully invoked to demand para-medical services according to the wishes. One has to note, however, that some persons try to infer nonetheless from the Constitution some kinds of rights to positive help of the state in deciding on one’s personal life such as a right to abortion. The text of the Constitution does not support such an interpretation. Even if such an interpretation were right, the constitutional right would be opposable to state not to the physician.

Article 68 says in its paragraph 1 that every one has the right to health protection. One has to stress the scope of this right is limited to protection of health. Once again the Constitution does not guarantee access to any other services provided by physicians than those oriented at the health of persons.

All these constitutional provisions should be read in the context of art. 38 guaranteeing the right to life. The Polish Constitution says in art. 38 that “The Republic of Poland shall guarantee to every man the legal protection of life”. There is no doubt that the constitution ensures protection to unborn children but the question of the nature and scope of this protection is a subject of dispute. There is an argument whether and to which extent abortion is constitutionally prohibited or permitted and whether the quoted provision requires a penal protection of the unborn child. In this strife, all the protagonists try to interpret the Constitution according to their own moral convictions. For pro-life campaigners the Constitution prohibits abortion, for pro-abortion campaigners abortion is permitted under the Constitution.

Whatever the position in this strife, it is indisputable that, in the relation patient-physician, the patient may legitimately claim his right to the protection of life and health. He does not have any other constitutional rights he may claim in his relations with the physician, especially his right to decide on his personal life may not be invoked in this case to force the physician to act according the patient’s requests. The only case in which a pregnant woman may have a constitutional basis for requesting abortion is the situation of a very serious threat to her life or health: but the point is that the Constitution does not expressly say how to solve the conflict of rights that arises: the right of the pregnant woman and the right of her unborn child.

All this analysis of the Constitution shows that the scope of potential conflicts between moral convictions of and constitutionally legitimized claims of an individual is more limited than it might have been thought prima facie. The conscience objection usually corresponds to a situation of conflict of constitutional values as constitutionally founded claims against persons invoking conscience objection usually meet constitutionally based counterclaims to protect specific constitutional values. Thus the conscience objection may usually be reinforced by a conflicting constitutional value and the potential conscience objector has to solve a conflict of constitutional values.

2. The conscience clause in ordinary legislation

2.1. The medical professions: the physician and the nurse

2.1.1. Obligations of the physician and the nurse.

The analysis of the conscience clause (12) presupposes a preliminary determination of the context of legal obligations in which it functions in order to determine the potential scope of situations in which a conscience objection is risen. It is thus necessary to present briefly the main obligations of health-centres and of physicians and nurses in Poland. (13) One has to note that the legal provisions imposing such obligations are not always clearly worded and may raise many interpretive questions but these detailed problems exceed the scope of the present paper.

According to the Act of 30 August 1991 on health-care centres (14), the rules of functioning of a health-care centre are determined by the charter enacted by the person or institution that creates that centre. It up to its founder to determine the scope of their activity in its charter. This charter is binding for the centre. The charter may, in principle, enumerate services to provided in a way that excludes any services the founder finds morally objectionable.

However, the law imposes some restrictions the freedom of the health-care to determine the scope of the services they wish to provide. Firstly, the law on health-care centres says that a health-care may not refuse to provide a health-care service to person who needs such an immediate service because of threat to his heath or life. This pertains to all health-care centres, public or private. Secondly, there are further restrictions on public health-care centres founded by state or local authorities. The founding authorities have to take into account the rights of the patients guaranteed by law and ensure access of the public to services that the law guarantees. Important limitations on the freedom of state and local authorities are imposed by the Act of 7 January 1993 on family planning, protection of human foetus and conditions of the permissibility of pregnancy interruption (15). This legal act says that “the organs state administration on local government, in the scope of powers defined in special provisions, are obliged to ensure the citizens free access to methods and instruments serving conscious procreation.” These organs are also obliged to ensure free access to prenatal diagnostics tests. The services mentioned here should therefore not be excluded from the scope of services provide by public health-care centres to the public.

According to Polish law, human life shall be protected, including in its prenatal stage, within the limits determined by statute. (16) Abortion is permitted only in three cases:

1) When the pregnancy poses a threat to the pregnant woman's life or health;

2) Prenatal diagnostically tests or other medical premises indicate a strong probability of a serious and irreversible impairment of the foetus or an incurable disease threatening his life;

3) There is a founded suspicion that the pregnancy is a result of a crime.

Article 4b of the Act of 7 January 1993 says that persons included in the social security system and persons entitled to free health-care have the right to free pregnancy termination in a public health-care centre (in the three above-listed cases). One has to note that this provision expresses a subjective right to abortion in cases when it is legal. Abortion in such situations should be provided free of charge. This right to abortion is limited to persons included in the social security system and persons entitled to free health-care. No other person may claim a right to abortion under the Polish law. The Supreme Court has awarded damages in cases when health-care centres deny legal abortion to those entitled to it.

For persons who are neither included in the social security system nor entitled to free health-care, abortion in the three cases is not a right but only a possibility that may be provided. It is up to the pregnant woman to find a physician who would accept to practice the legal abortion.

The Polish law does not guarantee the patient a right to medical services he wishes. It is up to physician to decide on how to cure his patient with the reservation that any medical intervention requires the consent of the patient. One has further to note that there are no specific regulations in Poland pertaining to the bioethical questions. The general rules of civil and penal law apply and such a situation leads to controversies among lawyers on what is permitted and what is prohibited in the field of assisted procreation.

The obligations of the physician or a nurse may result directly from law or from his employment contract or his services obligations (for instance in the army, police, prison administration and so on). According to the Polish law a physician has the obligation to provide medical assistance in any case when a delay may cause danger of losing life, serious injury or serious health disturbance and in other cases of emergency (17). The Polish law does not impose on the physicians a general duty to provide medical services to the patients. The physician is not obliged to provide any specific service on the request of the patient but he has to act according to the indications of current medical knowledge, available methods and means of prevention, diagnosis and therapy, according the principles of professional ethics and adequate care. He may refrain from undertaking treatment except in situations listed in art. 30 of the Act of 5 December 1996 of the professions of physician and dentist and he may give up a treatment, but if he is an employee of a public servant, he may do this only if there are serious motives, after obtaining the agreement of his superior.

A nurse and a midwife has the duty to provide assistance in any case of danger to life or serious health disturbance, according to her professional qualifications (18). As for the physicians there is no general obligation imposed on the nurses to provide assistance requested by a patient.

A physician or a nurse employed by a health-care centre is also obliged to obey the orders of his employer, and a physician who entered the public service has to obey the orders issued by his superiors. The owner of the health-care may theoretically require his employees to perform all kinds of actions that are not legally prohibited.

2.1.2.The conscience clause in statutes

The conscience clause is enshrined in statutes regulating the professions of physician and nurse. According to the Act of 5 December 1996 on the profession of physician and dentist, “A physician may refrain from providing health-care services incompatible with his conscience with the reservation of the art. 30 but has the obligation to indicate effective ways of obtaining this service from another physician or other health–care centre and motivate and note this fact in the medical documentation. A physician exercising his profession on the basis of an employment contract or within the framework of service has also the obligation to inform priory in writing his direct superior” (art. 39).

The conscience clause exists also in the statute regulating the professions of nurse and midwife. A nurse or a midwife may refrain after informing in writing her superior, from proving a health-care service incompatible with her conscience with the reservation of the art. 19 presented above. (19) This last provision says that a nurse or a midwife has the obligation to provide assistance in any case of threat of death or serious health disorder according to her professional qualifications.

The law-maker uses the wording “health-care services” (świadczenia zdrowotne). The two statutes containing the conscience clause do not define the notion of health-care services. A definition of this notion may be however deduced from art. 2 par. 1 of Act of 5 December 1996 of the professions of physician and dentist. According to this provision the exercise of the profession of physician consists in providing medical services, in particular: health examination, diagnosis, prevention of diseases, therapy and rehabilitation, medical consultations, medical opinions and statements. All these kinds of service are oriented towards the health of the patient. The term “health-care service” was defined in the art. 3 of the above-mentioned Act of 30 August 1991. According to this provision, “a health-care service is an action aimed at keeping, saving, restring or improving health and other medical actions resulting from the process of therapy or other provisions regulating the principles of their performing (…)”.

One has to have in mind that the conscience clauses are guarantee clauses and should be construed in a very broad way. The term “health-care service” should thus be interpreted in way that encompasses all possible services provided by physicians whether they are aimed at the health of the patient or not. The argument a fortiori applies here: if a physician may not be obliged to perform, against his conscience, an act that serves the health of his patient, all the more he may not be obliged to perform an act that does not serve the health of his patient.

It is admitted that the conscience clause pertains to specific types of services and does not allow refusing treatment because of the person of the patient (20) or because of threat to the health of the physician. Therefore a physician may not invoke the conscience clause to refuse treatment, for instance, to a criminal or to a HIV-positive person. According to the statute, the conscience clause may not be invoked by the physician in situations when a delay may cause the death, serious injury or health disorder and in other cases of emergency.

The scope of application of the conscience clause by the physician in relations with the state and the patient is limited for two main reasons. Firstly, the application of the conscience clause supposes a request from the patient for a specific service to which the patient is legally entitled. As it is up to the physician to choose the methods of therapy, the patient does not have a right to claim every service he wishes although he may ask the physician for a specific method of treatment. If, for instance, a patient requests a prescription for a contraceptive there is no legal obligation for the physician to comply with such a request and therefore no need to invoke the conscience clause.

Secondly, under the regulations presented above, a physician exercising his profession independently simply does not need to invoke the conscience clause in the relations with the patient as there is no general obligation for him to perform any acts (with the reservation of art. 30 Act of 5 December 1996 on the profession of physician and dentist). The conscience clause could be invoked had the patient have a claim against the physician to a specific medical service.

The conscience clause protects the physician not so much from the patient but from the employer. (21) The conscience clause may be necessary much more frequently in a case a medical centre employing physician has decided to provide services not oriented towards the health of the patient and requires the physician to provide such services on the request of the patient.

The law imposes three kinds of duties on the physician exercising his rights stemming from the conscience clause. Firstly, he has to inform the patient where he can obtain the legal service he wishes. Secondly, he has to note this fact in the medical documentation and motivate his refusal. Thirdly, if he is an employee or a civil servant, he has to inform his direct superior.

The law imposes on the physician the duty to provide information about the possibilities of obtaining the services refused. The violation of this rule is not punishable but may lead to compensation claims. The duty imposed on the physician is illegitimate and superfluous. It is this illegitimate as the transmission of information itself may violate the conscience of the physician. It is superfluous, as in the age of Internet it is very easy to find all information about an alternative access to medical and other services requested by the patient. It seems to be a kind of harassment imposed by those who are reserved towards the application of the conscience clause in the sphere of reproduction.

The physician has to note his refusal in the medical documentation and motivate his refusal. This means that there should be a motivation for each case of a refusal based on the conscience clause. The obligation was conceived as a guarantee for the patient, enabling an oversight of the therapy and ensuring protection from medical error.

If the physician is an employee or a civil servant, he also has to inform his direct superior before the refusal. This obligation is also very controversial. Some commentators of this provisions are asking themselves whether the obligation of prior notification is compatible with the obligation to motivate each case of refusal. The only possible interpretation is that the physician has to specify generally all kind of services he refuses to provide. That enables the direction of the health-centre to organize the functioning of the centre. The question is how detailed should be such a notification. Is it enough to declare, for instance the refusal to undertake any actions contrary to the Islamic faith? It there have to be detailed specifications of the objected services, it is impossible for the physician to foresee all possible situations in advance.

The law does not impose similar obligations on the nurse and the midwife. The only obligation imposed on the nurse or the midwife invoking the conscience clause is to inform her superior. Such an obligation seems perfectly legitimate and enables the director of the health-centre to organize its work taking into account the stand of his employees.

2.1.3. The conscience clause in the codes of professional ethics

The law has been complemented by the rules of professional ethics adopted by the professional corporations. The code of ethics of the physician states that the physician should keep the freedom of his professional actions, in conformity with his conscience and contemporary medical knowledge (art. 4). The physician has the freedom to chose the methods of action he considers as the most efficient (art. 6 sentence 1). In exceptional situations the physician may refrain from or abandon the treatment unless in emergency situations. In such cases the physician should indicate the patient an other possibility of obtaining medical assistance (art. 7).

The question of conscience objection is also addressed in the code of professional ethics of nurses and midwives. According to this legal act “a nurse or a midwife has the right to refuse to participate in treatment and biomedical experiments that are incompatible with the ethical norms she professes” (Detailed Part of the Code, Title II, par. 6).

One has to stress that the regulations contained in the code of ethics of physicians are different from the relevant statute. The code does expressly not provide for a refusal to provide specific treatment but stresses generally the physician’s freedom and duty to act in conformity with his conscience. It permits expressly not to undertake treatment or to give it in exceptional circumstances. The provision contained in the code of professional ethics of nurses and midwives is closer to the provisions of the relevant statute. Any way if a provision of a code of professional ethics contradicts a statute, the statute applies and a court will disregard the provisions of such a code.

2.2. The problems of other professions

2.2.1 Pharmacists

The Polish law does not provide a conscience clause for pharmacists. The law imposes on wholesalers in pharmacy branch the obligation to provide supplies of pharmaceutical products for chemists (22). The same statute imposes on chemists the obligation to have drugs and medicinal products in quantity and range necessaries to ensure the satisfaction of health needs of the inhabitants of the area. The chemists have to take especially into accounts the needs for refunded drugs. A regional pharmaceutical inspector may exempt a chemist from the obligation to sell psychoactive drugs. If a drug is not available the chemist has the obligation to enable a patient to buy the drug on a day agreed with this person.

The law obliges the chemists to ensure the supply of all necessary drugs. If a pharmacy refrains persistently from satisfying the needs of the population concerning pharmaceutical products the competent administrative authority may withdraw the permit for running a pharmacy. On the other hand these provisions are not enforced and the owner of a pharmacy who wants to refrain from selling contraceptives may in praxis do so without incurring any sanctions. Given the huge number of pharmacies in Poland, it is not a problem to buy contraceptives. However a chemist employed in the pharmacy has to obey the owner’s instructions and may be sanctioned for not complying with them.

The code of professional ethics states in its art. 4 that a chemist while executing his duties has to have freedom to act according to his conscience and the freedom oh his professional actions according to precepts of ethics, current state of knowledge and the state of law. According to art. 5 A of this code a chemist with full rights of exercising his profession is always personally responsible for his work. He has the duty to refuse to undertake actions that incompatible with precepts of ethics, valid legal provisions and scientific knowledge. Thus, according to the code, the conscience objection is not only a right but at the same time a duty of the chemist. The examined provisions of the code of professional ethics are incompatible with the statute but the statute itself does not seem compatible with the constitutional protection of the freedom of conscience.

2.2.2. Journalists

The relations between a journalist and its employer are not submitted to specific rules but to the general regulations of the labour code. There is no conscience clause in the Polish press law. Thus a journalist has to obey the instructions of his employer who may require his employee to give false informations or to express ideas he disapproves. Unlike in some other countries the journalist is not protected against the change of the media orientation due to its purchase by a new investor who wants to give its media a new orientation. A journalist wishing to work in harmony with his conscience has to find the appropriate employer. Some journalists asked for the introduction of a conscience clause that would allow them to disobey instructions to express ideas conflicting with their conscience or to transmit information incompatible with their knowledge about facts. This proposal has not yet been followed by the Polish legislator.

2.3. Military matters

The Act of 28 November 2003 on substitution service (23) regulates the principles of obtaining a permission to fulfill a substitution service instead of military service. The condition for a substitution service is that one’s religious convictions or moral principles do not allow him to fulfill a military service. The person wishing to fulfill a substitution service has to present a request. This request has to contain in particular a statement about the professed religious convictions. Furthermore the person requesting a substitution service has either to state the moral principles that collide with the duties of a soldier fulfilling the military service or to indicate the basis in the religious doctrine that precludes from fulfilling a military service and to demonstrate the relations with the professed religious doctrine. The law does not establish more precise criteria for allowing a person to fulfill the substitution service. As the draft in Poland has been suspended (24), these provisions have lost their previous practical importance.

CONCLUSION

The conscience objection in Poland has an only implicit constitutional basis with the exception of the explicitly granted right to request a civil substitute service instead of being enrolled in the army. The Polish statutory regulation of the conscience objection pertains to two types of situations: medical professions (physicians, nurses and midwives) and military service. The statutory regulation pertaining to medical professions was not rationally drafted according to a coherent moral system but reflects a pragmatic compromise between conflicting moral visions. Those opposing abortion obtained important restrictions on legal abortion and a conscience clause for physicians, nurses and midwives. Those supporting abortion succeeded to turn legal abortion into a subjective right and promoted the above-mentioned restrictions on the applications of the conscience clause. The compromise resulted in somewhat chaotic provisions in force which rise several interpretative questions concerning the application of the conscience clause by the physician.

NOTAS:

(1). L. Kubicki: Sumienie lekarza jako kategoria prawna [The Conscience of a Physician as a Legal Category] , Prawo i Medycyna, vol. 1, 1999, no. 1.

(2). Cf. J. Waldrom : Liberal Rights, Collected Papers, Cambridge 1993, especially the chapter Legislation and Moral Neutrality.

(3). For a introduction to the Christian vision of the conscience see for example John Paul II, the Encyclica Vertitaits Splendor, http://www.vatican.va/edocs/ENG0222/_INDEX.HTM

(4). A. Laignel declared : << Mais à ce moment précis son argumentation bascule du juridique au politique. De ce fait, il a juridiquement tort parce qu’il est politiquement minoritaire” (Assemblée Nationale, Compte rendu intégral. 2e séance du Mardi 13 octobre 1981, p. 1730).

(5). J. Haberko, Sumienie medycyny i litera prawa w obronie życia i zdrowia ludzkiego [The Conscience of Medicine and the Letter of Law in the Defence of Human Life and Health] in: Lege artis. Problemy prawa medycznego, J. Haberko, R.D. Kocyłowski, B. Pawelczyk eds., Poznań 2008, p. 22.

(6). Cf. the analysis of John Paul II: “Until quite recently, medical ethics in general and Catholic morality were rarely in disagreement. Without problems of conscience, Catholic doctors could generally offer patients all that medical science afforded. But this has now changed profoundly.”, Address on the Occasion of the International Congress of Catholic Obstetricians and Gynaecologists, Monday 18, June 2001

http://www.vatican.va/holy_father/john_paul_ii/speeches/2001/documents/hf_jp-ii_spe_20010618_obstetricians-gynaecologists_en.html

(7). One has to note that this Judgment was issued under the previous Constitution and under the 1956 law widely legalizing abortion. This law is no longer in force.

(8). See Orzecznictwo Trybunału Konstytucyjnego w latach 1986-1995 (Collection of the Judgments of the Constitutional Court in the Years 1986-1995), vol. 3. Lata 1991-1992 (Years 1991-1992), p. 73. Unless otherwise stated, the translations of verbatim quotations from judicial decisions and legal provisions were established by the author of the paper.

(9). See for instance B. Banaszak, Prawo konstytucyjne, Warszawa 1999, p. 389.

(10). See for instance K. Wojtyczek, Horyzontalny wymiar praw człowieka zagwarantowanych w Konstytucji RP [Third-party Effect of Constitutional Rights], Kwartalnik Prawa Prywatnego, vol. 8, 1999, no. 2

(11). Translation published by the first house of Polish Parliament (Sejm), http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm

(12). On the conscience clause in Polish see i.a.: E. Zielińska, Klauzula sumienia [The Conscience Clause], Prawo i Medycyna, vol. 5 (2003), no 13; A. Zoll, Prawo lekarza do odmowy udzielania świadczeń zdrowotnych i jego granice [The Right of a Physician to Refuse to Provide Health-Care Services and its Limits], Prawo i Medycyna, vol. 5 (2003), no 13; M. Boratyńska, O łamaniu przepisów dopuszczających przerywanie ciąży [On the Violation of the Provisions Admitting Pregnancy Termination], Prawo i Medycyna, vol. 10 (2008), no 31.

(13). Cf. A. Zoll, op. cit.

(14). Dziennik Ustaw (Journal of Laws) 2007, no 14 item 89 with subsequent amendments.

(15). Journal of Laws 1993, no 17, item 78 with subsequent amendments.

(16). Art. 1 of the above mentioned Act of 7 January 1993 on family planning, protection of human foetus and conditions of the permissibility of pregnancy interruption.

(17). Art. 30 of the Act of 5 December 1996 of the professions of physician and dentist, Journal of Laws 2008, no 136, item 857 with subsequent amendments.

(18). Art. 19 of the Act of 5 July 1996 on the professions of nurses and midwife, Journal of Laws 2009, no 151, item 1217,

(19). Art. 23 of the Act of 5 July 1996 on the professions of nurses and midwives.

(20). A. Pyrzyńska, Kilka uwag na temat nadużycia klauzuli sumienia (Art. 39 ustawy o zawodach lekarza i lekarza dentysty) in: Lege artis. Problemy prawa medycznego, J. Haberko, R.D. Kocyłowski, B. Pawelczyk eds., Poznań 2008, p. 18.

(21). Such an interpretation which seems obvious is nonetheless contested by A. Pyrzyńska (see op. cit., p. 16). For this author a contractual obligation prevails on the conscience objection.

(22). Art. 23 par 3c of the Act of 6 September 2001 – The Pharmaceutical Law, Journal of Laws 2008, no 45, item 271 with subsequent amendments.

(23). Journal of Laws 2003, no 223, item 2217.

(24). Regulation of the Council of Ministers of 22 December 2009 concerning the number of persons who may be called to active military service, basic service or training in civil protection and for service in armed services that are part of the Armed Forces, Journal of Laws 2009, no 226, item no. 1812.