Should Courts Grant Conscientious Exemptions?

Should Courts Grant Conscientious Exemptions? Should Courts Grant Conscientious Exemptions from Equality Laws as Judicial Remedy? Freedom of conscience and religion is a fundamental right as stated in Article 9 of the European Convention on Human Rights[1]. The key issue here is that there is no explicit reference to conscientious objection, which leads to a clash of ideals between freedom of thought, conscience and religion which may lead to individuals being permitted to discriminate against others and the principle of equality, which can only be dealt with via conscientious exemptions granted by the court. Therefore the purpose of this essay is to determine whether equality prevails over freedom of religion and whether the courts should grant conscientious exemptions from equality laws. Freedom of conscience and religion allows an individual to practice and change their religious or non-religious beliefs without interference from the government. However exercising ones right to manifest their religion or belief can overstep the mark and be inappropriate, an example being the case of Lee v McArthur[2]. In this case, the appellants were appealing an earlier ruling which stated that the appellants directly discriminated against a customer by not supplying a cake decorated with the message support gay marriage. The court upheld the original decision and gave the ruling that the bakery did in fact directly discriminate against the customer as it was a case of association with the gay and bisexual community and the protected characteristic was the sexual orientation of the community. This was a landmark case as it featured many democratic and political principles such as the right to free speech, the right to manifest ones beliefs, and the principle of equality. The rulin g also proved that, on this occasion as well as many others, equality does take precedence over freedom of conscience and religion, and that the court believed granting conscientious exemption could not be justified. The Equality Act 2010[3], in essence, is the statute that which places the limitations on the right to freedom of religion and one which all employers especially ones which provide goods and services must uphold. This is where the courts must show particular care as to defining the limits of freedom of conscience and religion as they must give particular regard to the legislation and its aim of protecting certain characteristics from discrimination in particular, sexual orientation, and religious and non-religious beliefs. One example where equality came up against freedom of religion was in the case of Hall v Bull[4]. This is a case where a same-sex couple were refused a double-bedded room by Christian hoteliers. The ruling given by Lords Neuberger and Hughes was that the couple were in fact directly discriminated against as he hoteliers were applying the criterion that their legal relationship was not that of one man and one woman, a criterion that cannot be distinguished from s exual orientation. The fact that there are a number of cases with similar rulings is more evidence that freedom of religion will not be favoured above equality, suggesting that courts are unwilling to grant conscientious exemptions. Conscientious objection has been around for many a year now, as historically humanists and religious people alike have exercised their right to refuse military service at times of conscription. One of the many ways to protect freedom of conscience and religion is by the granting of conscientious exemptions, and it is also one of the many varieties of exemption that can be granted by law[5]. This raises the question as to why the courts have not done more to protect the right to freedom of conscience and religion and grant such exemptions from equality laws. There have been a number of cases where the courts have granted conscientious exemptions, as well as being opposed to it in others. The very first case where the issue of the applicability of Article 9 (freedom of thought, conscience and religion) of the Convention to conscientious objectors was in the case of Bayatyan v Armenia[6]. In this particular case, a Jehovahs Witness was initially convicted of draft evasion and sentenced to prison for refusing to perform military service for conscientious reasons, which he then appealed to the European Court of Human Rights (ECtHR). The Court noted that a shift in the interpretation of Article 9 was necessary and that, being in the situation of the applicant, Article 9 was applicable to his case. The Court also noted that, by convicting the objector, Armenia had been in violation of Article 9 of the Convention. The Ruling in the Bayatyan case was a significant step in the direction of granting conscientious exemptions in relation to the refusal of engaging in military service. However, it is still debated as to whether courts should grant conscientious exemptions in relation to non-military services. In the case of Eweida and others[7], the complainants ( E, C, L and M) complained that the domestic law of the United Kingdom failed to protect their right to manifest their religion. In the applications of E and C, the complainants refused to remove their respective crosses as they were committed to their Christian faith. Their respective employers did not allow them to remain in their positions, with E not allowed to remain in her post while visibly wearing the cross, and C being moved to a different post which then ceased to exist. L was employed by a local authority as a registrar or births, deaths and marriages. However, as a Christian, she believed same-sex civil partnerships were contrar y to Gods law, and therefore refused to be designated as a registrar of civil partnerships, resulting in the loss of her job. M was employed by a private company with a policy of providing services to equally to opposite-sex and same-sex couples. However M refused to commit to providing counselling to same-sex couples, resulting in disciplinary proceedings being brought against him. The ruling given in the application of Eweida was that while the employer had a legitimate aim of wishing to project a certain corporate image, the domestic courts had given it too much weight[8]. However in Cs case, the judgement made was that interference with her freedom to manifest her religion was necessary in a democratic society and that there had been no breach of Article 9[9]. The reason for this was that asking her to remove the cross was of a greater magnitude than that applied in respect of E, since it was for the protection of health and safety. It was also noted that hospitals were better placed to make decisions about clinical safety than a court, especially one where no direct evidence was heard. The judgement given in the case of L was that there had been no breach of Article 14 in conjunction with Article 9 of the Convention as the local authoritys policy aimed to secure the rights of others, which were protected under the convention as well as Ls right to manifest her religion[10]. As in the case of M, the most important factor was that the employers action was intended to secure the implementation of its policy of providing a service without discrimination. This then allowed the state authorities to benefit from a wide margin of appreciation, which was not exceeded. Therefore, the ruling was that there was no breach of Article 9, taken alone or in conjunction with Article 14 of the Convention[11]. The main issue with all applications within the particular case, as with many other cases, was striking the right balance between the right to manifest ones religion and providing a service equally to everyone. Brian Barry is one theorist who holds the view that conscientious exemptions can rarely be justified and that it is hard to steer a path between the position that doing (or avoiding) X is so important that all should do it, and the alternative position that people should be free to decide for themselves whether to X[12]. This suggests that a path must be found if freedom conscience is to be taken seriously. Even more evidence to suggest that freedom of conscience will not be taken seriously in court and that the principle of equality will always trump the freedom of thought, conscience and religion. The clash between the right to thought, conscience and religion and the principle of equality has been and will be continuing for a very long time. Early evidence suggests that equality does prevail, as domestic and European courts have shown in their judgements of many human rights cases. As with the majority of cases, the complainant is usually an employee who may have been given disciplinary action by their employer. The key issue was whether there is a fair balance in each particular case and whether or not there was a wide margin of appreciation. Each case has different set of facts and what must be known is the circumstances surrounding the facts of the case e.g. was there a policy within the company that restricts one to manifest their religion, can it affect the health and safety of others, and are there other colleagues who wear religious materials but were not disciplined. As courts have shown to be more towards equality, and the fact that one case is completely different t o another, conscientious exemptions should not be granted as judicial remedy. However, whilst conscientious objection is as of now a right under Article 9 of the Convention[13] in relation to refusing to engage is warfare, it is still not explicitly stated so therefore such exemptions from equality laws should not be granted as judicial remedy. Bibliography Cases Bayatyan v Armenia (2012) 54 EHRR 15 Eweida and others v United Kingdom (2013) 57 EHRR 8 Hall v Bull[2013] UKSC 73 Lee v McArthur [2016] NICA 39 Legislations Equality Act 2010 EU Treaties Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9 Books B Barry, Culture and Equality (2001) 46, 50 (as cited in Yossi Nehustan, Religious Conscientious Exemptions (2011) 30 Law and Phil. 143) Journal Articles Yossi Nehustan, Religious Conscientious Exemptions (2011) 30 Law and Phil. 143 [1] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9 [2] Lee v McArthur [2016] NICA 39 [3] Equality Act 2010 [4] Hall v Bull[2013] UKSC 73 [5] Yossi Nehustan, Religious Conscientious Exemptions (2011) 30 Law and Phil. 143 [6] Bayatyan v Armenia (2012) 54 EHRR 15 [7] Eweida and others v United Kingdom (2013) 57 EHRR 8 [8] Eweida (n 7) [94-95] [9] Eweida (n 7) [99-100] [10] Eweida (n 7) [106] [11] Eweida (n 7) [109-110] [12] B Barry, Culture and Equality (2001) 46, 50 (as cited in Yossi Nehustan, Religious Conscientious Exemptions (2011) 30 Law and Phil. 143) [13] (ECHR) art 9 (n 1) Atrial Fibrillation: Basic Pathophysiology Atrial Fibrillation: Basic Pathophysiology Introduction Atrial fibrillation is the most common form of cardiac arrhythmia; it involves the two upper chambers of the heart known as the atria. During atrial fibrillation the normal pulses generated by the sinoatrial node are overcome by the electrical pulses that are generated in the atria and pulmonary veins, which leads to irregular impulses being conducted to the ventricles, and therefore irregular heartbeats are generated. AF is identified by rapid and oscillatory waves that vary in amplitude, shape and timing instead of regular P-waves. Electrocardiograms are therefore used commonly to diagnose AF in patients. Arterial Fibrillation can present asymptomatically meaning that it can present in a patient but show no symptoms, it is considered to be non life threatening in many cases although it can result in heart palpitations, fainting, chest pain and in chronic cases congestive heart failure. The risk of stroking is also increased due to the fact that blood may pool and form clots in poorly contracting atria. Patients with AF are usually given blood-thinning medication such as warfarin to stop clots forming. Atrial fibrillation can occur in the absence of structural heart disease, known as lone AF, although this only occurs in approx. 15% of cases. Commonly AF is associated with hypertension, diabetes, obesity, coronary artery disease, pulmonary disease, valvular heart disease and coronary heart failure. Basic Pathophysiology of Atrial Fibrillation Atrial fibrillation usually begins with increased premature atrial contractions (ectopic beats) progressing to brief runs of atrial fibrillation usually that are usually self-terminating, over time these episodes can increase in duration and sometimes become persistent. During this progression structural changes in the atria occur as well as biochemical changes in the atrial myocytes. Pathophysiological adaptation of the atria to fibrillation has been broadly termed remodeling. More specifically, the changes primarily affecting the excitability and electrical activity of the atrial myocytes have been termed electrophysiological remodeling. The primary change in the structure of the atria is fibrosis, which is usually considered to be due to the atrial dilation, although in some cases genetic influences and inflammation can also be a cause. In 1990 Sanfilippo stated that atrial dilation was not a consequence of AF although more recently in 2005 Osranek stated that atrial dilation was not a consequence of AF. Dilation is due to almost any structural abnormality of the heart, such as hypertension, valvular heart disease and congestive heart failure; this structural abnormality causes a rise in intra-cardiac pressures. Demonstrating the strong relationship between atrial fibrillation and structural heart disease. Once dilation does occur it begins sequences of events that lead to the activation of the rein aldosterone angiotensin system and a subsequent increase in matrix metaloproteinases and disintegrin, leading to remodeling of the atria and fibrosis. Fibrosis is not limited to muscle mass of the atria, it can occur in sinus node and atroventricular node also, relating to sinus node dysfunction (sick sinus syndrome). During normal electrical conduction of the heart the SA node generates a pulse that propagates to and stimulates the muscle of the heart (myocardium), when stimulated the myocardium contracts. The order of stimulation is what causes correct contraction of the heart, allowing the heart to function correctly. During atrial fibrillation the impulse produced by the SA node is overcome by rapid electrical discharges produced in the atria and adjacent parts of the pulmonary veins. When AF progresses from paroxysmal to persistent the sources of these conflictions increase and localise in the atria. Principles of Catheterization and Ablation The fundamental aim of catheter ablation is to eliminate ectopic beats that arise most often in the pulmonary veins and less often in the superior vena cova and coronary sinus. This is accomplished through catheter insertion into blood veins in order to reach the heart, isolation of abnormal heart tissue and ablation of this abnormal heart tissue through the use of radiofrequency, cryoblation or high intensity focused ultrasound. Rate Control and Rhythm Control Despite ablative techniques and antiarrhythmic drugs available, management of common rhythm disturbance remains a problem. Rate control is the preferred treatment for permanent atrial fibrillation and for some patients with persistent atrial fibrillation, if they are either over 65 years of age or have coronary heart disease. Rate control is usually done through the use of pharmaceutical drugs (usually beta blockers or rate limiting calcium channel blockers) in order to slow ventricular heart rate and stop the atria from fibrillating. Rhythm control is most commonly used for the treatment of paroxysmal atrial fibrillation and in some cases of persistent atrial fibrillation if the patient is either less than 65 years of age, has lone atrial fibrillation or congestive heart failure. Rhythm control is usually achieved through the use of either a cardioversion (electrically or pharmacological) or the use of pharmaceutical drugs (usually beta blockers) in order to maintain sinus rhythm. T his treatment is needed for a longer time in order to stop reoccurrence of atrial fibrillation. [http://www.cks.nhs.uk/atrial_fibrillation/management/detailed_answers/first_or_new_presentation_of_af/rate_or_rhythm_control#-391784). Atrial fibrillation is treated most commonly pharmaceutically although if the drugs cannot control the AF or if the patient is having a bad reaction to the medication, catheter ablation therapy allows for greater control of heart rate and rhythm than drug therapy although it does present more risk to the patient. Radiofrequency Catheter Ablation Electrically isolating arhythmogenic thoracic veins is the most important aspect of this procedure. The application of radiofrequency energy to an endocardial surface is used to cause cellular electrical destruction with the loss of cellular electrical properties, essentially the destruction of abnormal electrical activity [39,40]. This technique can be enhanced through the use of larger ablation electrodes, [41-46] allowing the creation of deeper lesions. During the procedure a physician will map the area to locate abnormal electrical activity, this is facilitated through the use of electroanatomic mapping system (fig 2) allowing for better navigation when the catheter is inserted into the artery. Reported success of radiofrequency ablation is dependent on the severity of the condition and ranges from 65% to 85% and patients presenting with complications is 5%.[cryostat] Cryoblation The most used format of cryoblation is the cryoballoon approach. This involves a deflectable a deflectable over-the-wire catheter with an inner and outer balloon inserted, allowing for anatomical variance this balloon is available in two sizes (23mm and 28mm). The guidewire is positioned in the distal part of the pulmonary vein, the deflated balloon is then progressed to the pulmonary vein ostium. Using the central balloon marker the balloon position is then estimated before inflation, once the desired position is found the balloon is inflated; pressurized N20 is then delivered to the tip of the catheter via an ultrafine injection tube down a central lumen in the inner balloon, working like an expansion chamber. Sudden expansion of the liquid gas causes evaporation and absorption of heat from tissue and low temperatures are then achieved (Approx -80dc). An occlusion angiogram is then performed in the central lumen of the catheter to ensure good balloon pulmonary vein contact. Cryobla tion is then started for at least five minutes under the condition that optimum pulmonary venous occlusion is achieved. The most important issue when using this technique is to establish optimum contact between the pulmonary vein antrum and the balloon. High Intensity Focused Ultrasound (HIFU) High intensity ultrasound is used in percutaneous ablation of atrial fibrillation through the use of a steerable balloon catheter. The high intensity focused ultrasound balloon is positioned at the ostium of the pulmonary veins and forms a sonicating ring to ablate pulmonary vein antrum when high intensity focused ultrasound is delivered. An arrhythmia-free rate of 59%-75% was achieved by HIFU balloon in several studies investigating its effectiveness in atrial fibrillation ablation.15-17 Commercially Available Devices and Systems Medtronic GENius Multichannel RF Generator This generator is used for the creation of endocardial lesions during cardiac ablation procedures for the treatment of supraventricular arrhythmias. The generator delivers temperature-controlled radiofrequency energy, utilizing five radiofrequency energy mode selections: bipolar only, unipolar only, and combination energy mode selections of 4:1, 2:1, and 1:1. This system must be used with a catheter that is single use and sold separately to the device. The generator automatically recognizes the attached Cardiac Ablation Catheter and loads preset default temperature, time, and energy mode setting parameters. Ablation parameters such as ablation duration, energy mode, target temperature and channels can also be manually selected. Medtronic Cardiac CryoAblation Device The CryoConsole contains both electrical and mechanical components as well as exclusive software for controlling and recording a cryotherapy procedure. This system requires catheters that are purchased separately such as Medtronics Artic front cryoablation catheter (Fig. 3). This system stores and controls the delivery of the liquid refrigerant through the coaxial umbilical to the catheter, recovers the refrigerant vapor from the catheter under constant vacuum, and disposes of the refrigerant through the hospital scavenging system. Multiple features are built into both the CryoConsole system and catheters to ensure safety. Epicor Cardiac Ablation System Price The Epicor LP Cardiac Ablation System delivers High Intensity Focused Ultrasound using algorithms designed to precisely deliver energy up to 10mm. Unlike the other treatments high intensity focused ultrasound has the ability to create lesions from the inside out, depositing energy at the endocardium first and then building the lesion back up to the surface. The ability to focus HIFU cardiac ablation energy helps reduce the risk of tissue disruption, charring and collateral damage as well as overcome procedural limitations that have historically been associated with other ablation technologies. Conclusion In terms of ablation the umbrella terminology of Atrial Fibrillation does not take into account the complex nature of the disease. If a patient presents with paroxysmal atrial fibrillation they may only require a single catheter to be used, however if this condition becomes more continuous/chronic the patient may require multiple catheters and 3D navigational software. The three techniques described in this report appear to be similar in terms of their success rate, radiofrequency and cryoablation have a success rate of approx. 65-85% while High intensity focused ultrasound has a success rate of approx. 59-75%, this perhaps indicates that high intensity focused ultrasound may not be as effective in treating atrial fibrillation as radiofrequency and cryoablation although it is worth noting that these figures are taken from different research studies at different times and involve different patients that could be presenting greater or lesser a severity of atrial fibrillation.