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Dismissal of the objector doctor: is it lawful in cases of failure to assist?

Published in: Employment law
by Antonella Marmo
Home > Dismissal of the objector doctor: is it lawful in cases of failure to assist?

A recent Italian Supreme Court ruling (16551/2023) has raised a fierce debate regarding the disciplinary dismissal of a conscientious objector physician.

In the case at hand, the physician had been fired for failing to provide care to a patient during a medication abortion. This decision, which was initially deemed legitimate, was carefully considered by the Italian Supreme Court. The ruling addressed the delicate balance between professional duties and freedom of conscience of objecting physicians, raising important legal and ethical questions.

The case of the disciplinary dismissal of the objector doctor

The case that led to the Italian Supreme Court ruling concerns a conscientious objector physician who was fired by the health care provider. During his night shift, the doctor failed to assist a patient about to terminate a medication abortion.

The court initially found the dismissal lawful, a decision also upheld by the Naples Court of Appeals.

The doctor, however, challenged the dismissal by taking the case to the Italian Supreme Court. The Italian Supreme Court carefully examined the case, taking into consideration the principles of proportionality and freedom of conscience. This led to a decision that overturned previous ones, raising important legal and ethical questions on the issue of conscientious objection by doctors.

Objector doctor: the issue of proportionality of dismissal

This ruling raised complex questions about the legal, ethical, and moral implications of conscientious objection in the medical field.

While the physician’s right to follow his or her conscience and not to participate in acts that may violate his or her ethical and moral principles is recognized, a professional obligation to provide timely and effective medical care, especially when the lives or health of patients are endangered, exists in every case.

This highly controversial issue started a considerable debate concerning the balance between the freedom of conscience of objector doctors and their professional duty to provide medical care.

In its ruling, the Italian Supreme Court pointed out that the trial judges did not adequately assess the principle of proportionality between the physician’s conduct and the severity of the sanction imposed, as required by the National Collective Labor Agreement (CCNL). In the Court’s reasoning, it emerged that the doctor’s breach of duty of care did not cause actual harm to the patient and there was no evidence of concrete discredit to the health care company.

The Court also emphasized the importance of carefully considering the actual existence of a serious health risk before applying disciplinary sanctions, stressing the need for a thorough balancing act between professional misconduct and the proportionality of disciplinary sanctions, especially when dealing with sensitive situations such as conscientious objection.

Retaliation and the decision of the Italian Supreme Court

The Italian Supreme Court also emphasized the issue of retaliation in the dismissal of the objector doctor. The ruling pointed out that the doctor’s behavior, although noncompliant, was not entirely incongruous, as he had promptly called another doctor who had positively followed up the case.

The court found it necessary to carefully examine whether the dismissal had the character of retaliation and sent the case back to the Naples Court of Appeals in a different composition, for an ex novo evaluation. This aspect raises important questions about the balance between professional duties and freedom of conscience of objector doctors, and it will be interesting to observe how the discussion will develop in the course of the retrial.

The Italian Supreme Court’s ruling on the dismissal of the objector physician has drawn attention to the need for a balanced and thoughtful assessment of the proportionality of disciplinary sanctions. The case raised important questions regarding the professional duties of physicians and their freedom of conscience. It will be interesting to follow the new trial in the Naples Court of Appeals and see how the balance between these fundamental principles will be struck, paving the way for possible developments in the field of labor law and the protection of the freedom of conscience of objector doctors.

© Canella Camaiora Sta. All rights reserved.
Publication date: 12 July 2023
Last update: 7 September 2023

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Antonella Marmo

A Lawyer at the Canella Camaiora Law Firm, a member of the Milan Bar, she focuses on Commercial and Employment Law.
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