A reasonable or rationalistic account of conscience takes ‘extended consciousness’ encompassing the gathering of knowledge (Damasio 1999: 232), rational moral principles and reason as the source of one’s moral convictions. Conscientious judgments, by this view, are really critically reflective moral judgments concerning right and wrong (Garnett 1965; Broad 1940). Rational insight can be either religious or non-religious in nature, depending on what a person’s world views are. Either way, a rational conscience typically manifests itself as ‘a little voice inside one’s head saying what one should and should not do’ — also called ‘the “voice” of conscience’ (Benjamin 2004: 513). Or, to put this in moral terms, it tells us what our moral obligations and duties are. Statements of conscientious objection then are, by this view, merely statements of moral duty which individuals recognise and commit themselves to fulfil. Whether the duties or obligations identified impose overriding or absolute demands, or only prima-facie demands on the individual is, however, another matter entirely, and one that is considered shortly.

There are two possible versions of a ‘moral feelings’ account of conscience — emotivist and intuitionist. Both consist of a tendency to spontaneously experience either emotions or intuitions ‘of a unique sort of approval of the doing of what is believed to be right and a similarly unique sort of disapproval of the doing of what is believed to be wrong’ (Garnett 1965: 81).

It is generally recognised that these feelings are quite different from the sorts of feelings we might have when, for example, looking at a beautiful painting (aesthetic approval) or an awful painting (aesthetic disapproval), or eating a favourite food (the feelings of mere liking) or smelling an awful smell (feelings of mere disliking), or witnessing an act of remarkable human achievement (feelings of admiration) or an act of extraordinary human failure (feelings of disdain). By contrast, in the case of wicked acts or the violation of duty, conscience may manifest itself in strong and distinguishable feelings of moral loathing, shame, remorse or even guilt (see Greenspan 1995), or, as Beauchamp and Childress (1989) suggest, the unpleasant feelings of ‘a loss of integrity, wholeness, peace, and harmony’ (p 387). To borrow from Fletcher (1966), conscience can manifest itself as ‘a sharp stone in the breast under the sternum, which turns and hurts when we have done wrong’ (p 54). In the case of virtuous acts, conscience may manifest itself as strong feelings of reassurance or moral goodness (Fletcher 1966: 54; Kant 1930: 130), or, as Beauchamp and Childress (1989) suggest, as feelings of integrity, wholeness, peace and harmony (p 387). Either way, moral feelings instruct individuals on what they ought and/or ought not to do. As with the rationalistic account, statements of conscience emerge as statements of obligation and duty.

The concept of conscience as a combination of reason and feelings basically involves an integrated response to ‘moral catalysts’ in the world. It does not rely on ‘blind emotive obedience’, as Kordig (1976) calls it, nor on an exclusive and blind devotion to reason. Rather, it relies on the mutually guiding and instructive forces of both moral sensibilities and moral reasoning. This account of conscience is, arguably, the most plausible of the three given, and is thus the one that underpins this discussion.

Now that we have briefly examined the essential nature of conscience, the next question is: How does conscience function as a moral authority?

It is generally recognised that conscience functions as a personal (internal) sanction and as a personal moral authority (Beauchamp & Childress 2001; Childress 1979). Claims of conscience typically identify individual people with their self-chosen or autonomously chosen standards and principles of conduct (Nowell-Smith 1954: 268). Further, they commit individual people to act in accordance with those principles. In other words, claims of conscience commit the individual person to act morally (Timms 1983: 41). Thus, when conscience is said to be ‘personal’ or ‘one’s own’, all that is being claimed is that a particular set of autonomously chosen moral standards has authority over a particular person — not, as is sometimes mistakenly thought, that the person has a unique and different set of moral standards from everybody else, and thus is a kind of ‘moral freak’.

Conscience can be appealed to both as a kind of ‘reviewer’ or ‘judge’ of past acts, and as an ‘authority on’ or as a ‘guide to’ future acts. Whether conscience is appealed to as judge or guide, however, it is important to understand that conscience is not morality itself, nor is it the ultimate standard (or even a standard) of morality. Rather, as Gonsalves explains (1985: 55), it is:

Or, as Childress explains (1979: 319), it is merely ‘the mode of consciousness resulting from the application of standards’.

Gonsalves’ and Childress’ views make it plain that statements of conscience are not statements of a unique moral faculty or of unique moral standards. Rather, they are statements of a particular application of adopted moral standards. Conscientious objection, by this view, essentially translates into a case of moral disagreement in regard to which moral statements apply and what one’s moral duty is in a particular situation. If this is so, the case for respecting a conscientious objector’s claims becomes compelling — particularly in instances where there are no clear-cut moral grounds for settling a specific disagreement (as sometimes occurs in the cases of abortion, organ transplantation, assisting with the involuntary administration of electroconvulsive therapy [ECT] or psychotropic medication, administering blood to Jehovah’s Witness patients, and similar cases) (see also Wicclair 2000).

It should be noted here that, once it is accepted that claims of conscience translate into claims of duty, it is conceptually incorrect to speak of conscientious objection as a right (as some nursing position statements on the subject do). To assert this would be to assert that an individual has a ‘right to have a duty’, which is conceptually incorrect. It is more correct to speak of others being bound to respect another’s claim of conscience, just as they are bound to respect another’s claim of moral duty.

The problem remains, however, that consciences are fallible and can make mistakes (Seeskin 1978). As Nowell-Smith (1954: 247) points out, some of the worst crimes in human history have been committed by people acting on the firm convictions of conscience. Hitler, for example, believed he was fulfilling a supreme moral duty by purging the German race of its ‘Jewish disease’ (Kordig 1976). Others also point out that, in some instances, what appears to be a claim of conscience may be nothing more than a claim of prudence or self-interest or convenience. This invariably raises the question: Should I always obey my conscience? Further to this, claims of conscience can be insincere or counterfeit, raising the additional questions of: How can I distinguish between genuine and bogus claims of conscientious objection? Should I always respect another’s conscientious claims? It is to answering these questions that this discussion now turns.

Nurses as employees are compelled by the principle of employment law to obey the lawful and reasonable directives of an employer or superior. The problem is, however, that nurses might not always agree morally with the lawful directives they have been given, and thus may sometimes find themselves in the uncomfortable position of having to perform acts which violate their reasoned moral judgments (Johnstone 1998, 1994).

There are many examples of nurses having been caught in both personal and professional dilemmas on account of legal demands to obey the lawful though morally controversial directives of doctors and nurse superiors. Examples have typically involved situations in which nurses have been directed, against their will, to assist with morally controversial procedures such as abortion, euthanasia, ECT and organ transplantation. The difficulties nurses have encountered in such situations have been compounded by the fact that they have had little, if any, avenue for officially expressing their conscientious refusal without fear of losing their jobs or facing other threats.

Situations involving nurses’ conscientious refusal to follow lawful but morally questionable directives invariably pose the age-old question of whether an individual can, all things considered, be decently expected to follow morally controversial or morally bad, although legally valid, laws — or, in this case, lawful directives.

As can be readily demonstrated, the problem of legal–moral conflict is not new to philosophy. Questions of, for example, what is the proper relationship of morality to law, what is to count as a good legal system, or whether individuals ought to be compelled to obey immoral laws, have long been matters of philosophical controversy. Hart, an Oxford scholar and professor of jurisprudence, for example, argued half a century ago that existing law must not supplant morality ‘as a final test of conduct and so escape criticism’ (Hart 1958). He also argued that the demands of law must be submitted to the scrutiny and guidance of sound morality before they can be justly enforced (Hart 1961). Not surprisingly, these kinds of views have sparked intense debates in both philosophy and law. It is beyond the scope of this text to discuss Hart’s views and address the interesting questions concerning the philosophy of law that they raise. Nevertheless, it is assumed for argument’s sake here that any law which fails the test of sound moral scrutiny should be either adjusted or rejected; it is also assumed that to punish autonomous moral agents for refusing to obey lawful but morally questionable directives is morally unjust.

A number of other important considerations are worthy of attention here. First, there is the persuasive view that forcing nurses to act against their reasoned or conscientious judgments is to not only ignore or diminish their moral autonomy, but also to violate the principles of morality itself — not least those of autonomy and reflectivity (Muyskens 1982a: 61). Perhaps even more troubling is the possibility that violating nurses’ consciences would also unjustly violate their integrity as moral agents (see also Wicclair 2000; Childress 1979).

Second, it is generally recognised that if people are forced constantly to violate their conscience then their conscience will gradually weaken and lose its authority (Kant 1930). This in turn makes it easier for individuals to avoid fulfilling their perceived moral duties and/or acting in accordance with autonomously chosen moral standards. As a result, there is likely to be a general breakdown in compliance with moral rules and principles, and a general erosion of individual moral responsibility and accountability. It takes little to imagine what would happen to the moral fabric of the community at large if all its members were forced, say, by order of the state, constantly to violate their reasoned moral judgments or consciences. No less consideration is due to what may ultimately happen to the moral fabric of the nursing profession if its individual members are constantly forced to abandon their reasoned moral judgments and consciences in favour of preserving the prescriptions and proscriptions of law and convention.

Related to this is a third consideration — that moral duty ‘is mainly concerned with the avoidance of intolerable results’ (Urmson 1958: 72). If fulfilling one’s supposed duty does not avoid or prevent intolerable results, it seems reasonable to question whether in fact it was one’s duty in the first place. As with the case of supererogatory acts (that is, acts above the call of duty, such as those performed by saints and heroes), care must be taken to distinguish those deeds which can be reasonably expected of ‘ordinary’ persons (or ‘ordinary’ nurses) from those which it would merely be nice of ‘ordinary’ persons (nurses) to perform, but which could never be reasonably expected of them (Urmson 1958: 68). On this point, Urmson (1958: 71) argues: ‘… a line must be drawn between what we can expect and demand of others and what we can merely hope for and receive with gratitude when we get it’.

Fourth, those who coerce others to act against their conscience erroneously presume that coercion vitiates moral responsibility. This, however, is not so. Just as more sophisticated claims of duty cannot be escaped or deceived, neither can claims of conscience. It is a mistake to hold that, if a person is forced to perform an act to which they are conscientiously opposed, they are less morally culpable for that act, and that they will feel less morally guilty for having performed it. What users of force fail to understand is that an instance of moral violation still stands, regardless of whether it has been caused by an act of coercion or an act of free will.

Fifth, nurses are not automata or robots, but thinking, reasoning, feeling, responsible human beings. Legal law recognises this by the very fact that it can and does hold nurses independently accountable for their actions (Johnstone 1994). Given this, it is a mistake to hold that nurses have an unqualified duty to obey the directives of a superior.

Lastly, it is ultimately more desirable than not to have a health care system comprised of conscientious nurses. Nurses comprise 70% of the health care workforce. The prospect of 70% of health care providers being morally unconscientious is a bleak one. Since most of us cannot be saints, but can be conscientious, we need to preserve and cultivate conscientiousness (Nowell-Smith 1954: 259; Garnett 1965: 91). Only by doing this can we be assured of achieving and maintaining some sort of moral order in health care domains. As Seeskin (1978) argues, ‘… we have no guarantee that our deliberations will be perfect or our moral sensibilities adequate’ (p 299); it is for this reason, among others, that conscience and moral conscientiousness should be given a place among the moral virtues. We might be condemned as fanatics if we hold conscience to be infallible, but if we do not at least acknowledge its ultimateness in the scheme of moral reasoning, we might be guilty of moral negligence and moral irresponsibility (Seeskin 1978; Kordig 1976).

The consequences of such views have interesting implications for policy makers attempting to respond to the conscientious objection problem. These views seem to suggest that, even if nurses’ consciences are mistaken, on balance there are moral benefits to be gained by permitting their conscientious objections — not least, the benefits of fostering moral sensitivity and moral responsibility in the workplace. These views also suggest that, if nurses are not permitted conscientiously to object, then health care contexts, not to mention the community at large, will be morally worse off by virtue of being more at risk of suffering moral harms on account of receiving care that is not informed or guided by conscientious ethical beliefs and standards.

It might be objected here that permitting conscientious objection is not conducive to the efficient running of hospitals and other health services. There is, however, little support for this kind of claim. In the case of military service, for example, it has been found that objectors are rarely amenable to threats and usually make unsatisfactory soldiers if coerced, and that in fact there are generally not enough objectors to frustrate the community’s purpose (Benn & Peters 1959: 193). There is room to suggest that something similar is probably true of objectors in nursing. As many examples in the nursing literature have shown, nurses have preferred to resign and risk dismissal than perform acts which they find morally offensive. Further to this, those nurses who have been coerced have not wholly complied with given orders. (For example, I know of nurses who have resuscitated patients in cases of controversial DNR directives, and not resuscitated patients in the case of controversial CPR orders.) It is also unlikely that there are enough objecting nurses to obstruct the efficient running of the hospital system.

Where lawful directives entail a demand to perform morally controversial procedures, there is considerable scope for suggesting that a nurse has a firm moral basis upon which to conscientiously object. Issues such as abortion, organ transplants, electroconvulsive therapy, the enforced and involuntary treatment of psychiatric patients and euthanasia are all morally controversial, and, as yet, no morally clear-cut grounds exist for resolving them. Until these issues can be resolved satisfactorily, it would be morally indefensible and unjust to insist that nurses must, when directed, assist with abortion, organ transplantation, electroconvulsive therapy and euthanasia work — or any other work which is morally controversial. In other words, where a so-called ‘standard’ or ‘reasonable’ medical or nursing procedure is morally questionable, nurses cannot decently be forced to perform or participate in that procedure. Further, it is worth noting once again that what we have in a situation of conscientious objection is moral disagreement — something which, as discussed in Chapter 6, may not be resolvable. The most amenable solution seems to be to permit conscientious objection.

The question of if, and when, and under what circumstances nurses may refuse to care for certain patients has become a particularly important and challenging one over the past two decades, largely because of the worldwide HIV/AIDS epidemic. Despite significant advancement in the care and treatment of people living with HIV/AIDS (estimated in 2006 to be around 39.5 million globally), the disease remains one of the most serious health problems in the world (United Nations [UN] & WHO 2006). Furthermore, although attitudes towards HIV/AIDS, and people living with HIV/AIDS are more positive and tolerant than they were two decades ago, discriminatory attitudes and practices by health workers towards patients with HIV/AIDS (especially those who are gay) are still a problem in some countries and contexts (Lohrmann et al 2000; Schuster et al 2005; Reis et al 2005; Röndahl et al 2003; Valois et al 2001; Walusimbi & Okonsky 2004). Research also shows that despite more progressive attitudes in society towards ‘diversity and difference’, gay, lesbian, bisexual and transgendered people are still regarded as ‘not yet equal’ (McNair & Thomacos 2005) and continue to experience significant prejudicial and discriminatory attitudes and behaviours on the part of nurses and doctors in health care contexts (Jones et al 2002; Mikhailovich et al 2001; Reis et al 2005; Schuster et al 2005). For example, when their sexual orientation is known by health care professionals, gay, lesbian and transgendered people in particular have reported such responses as ‘embarrassment by care providers, fear, ostracism, refusal to treat, demeaning jokes, avoidance of physical contact, rough physical handling, rejection of partners and friends, invasion of privacy, breaches of confidentiality, and feeling at risk of harm’ (Mikhailovich et al 2001: 182; see also McNair & Thomacos 2005; Reis et al 2005; Röndahl et al 2003; Schuster et al 2005).

Questions have been asked, both in Australia and overseas, about whether nurses can rightly refuse to care for HIV/AIDS patients (including infected newborns) (for an exhaustive discussion of this issue, see Crock 2001). During the early years of the HIV/AIDS epidemic, overseas research studies and opinion polls revealed that some nurses would rather abandon their practices and nursing careers than place themselves at risk by caring for HIV/AIDS patients (Huerta & Oddi 1992; Jemmott et al 1992; Melby et al 1992; Beard et al 1988; Lester & Beard 1988). In one US opinion poll, published in Nursing 88, it was revealed that 73% of nurses surveyed were concerned about their own safety, and 47% believed they had a right to refuse to care for HIV/AIDS patients; interestingly, an overwhelming majority (93%) stated that they had never refused to care for an HIV/AIDS patient, despite their fears (Brennan et al 1988). The poll also revealed that a staggering 80% of nurses surveyed stated that their own families were concerned about their (the nurses’) safety when caring for HIV/AIDS patients.

Other studies at the time also revealed that nurses caring for HIV/AIDS patients had been shunned by family, friends and neighbours, and even by other health care workers, who apparently feared association ‘with one who provides direct care’ (Huerta & Oddi 1992: 221; Nursing Times 1986a: 10). More recent research, however, has found that, even when concerned about contagion, most nurses and students of nursing have a positive attitude towards caring for patients with HIV/AIDS, are more empathic, less fearful and ‘are no longer worried about their relatives and friends after they come into contact with a person infected with AIDS’ (Lohrmann et al 2000: 700; Röndahl et al 2003; Walusimbi & Okonsky 2004). Even so, research is also showing that between 12% and 36% of health care workers would ‘feel uncomfortable’ working with a gay and/or HIV/AIDS positive patient and would refrain from providing care if given the opportunity to do so (Jones et al 2002; Reis et al 2005; Röndahl et al 2003; Schuster et al 2005).