MEMORANDUM OF LAW

To: Secretary of Health

From: Atty. Pia C. Sotto
Date: August 2, 2016
Re: Legal grounds of the Secretary of Health to file a case against government Catholic
doctors who refuse to give advice regarding family planning and responsible parenthood
information and even to dispense of any artificial contraception because of their faith
Statement of Assignment:
I have been assigned the task of giving the Secretary of Health legal arsenal to
allow her to file a case against government Catholic doctors who refuse to give advice
regarding reproductive health care and even dispense of any artificial contraception.
ISSUE:
Whether or not the Secretary of Health has legal grounds to file a case against
government Catholic doctors who refuse to give advice on non-natural birth control
remedies because of their faith?
Brief Answer:
Yes. Government doctors who refuse to give advice on non-natural birth control
remedies because of their faith violate Section11 of R.A. No. 6713.
Analysis:
I. LEGAL GROUNDS
The Secretary of Health can file case against these lawyers because of the following:
Article II, Section 15 of the 1987 Constitution states that the State shall protect
and promote the right to health of the people and instil health consciousness among
them.1 Consistent with this provision is Article XIII, Section 11 which mandates the
State to adopt an integrated and comprehensive approach to health
development2 To be able to enact the said provision, the President of the
Philippines, being the Chief Executive, mandates Department of Health to effectively
implement programs that will promote the health and well-being of the every Filipino
and it shall propagate health information and educate the population on
important health, medical and environmental matters which have health
implications.3 To fulfil its mandate, it is stated under Executive Order 102, series of 199,
that DOH shall serve as lead agency in articulating national objectives for health to
guide the development of local health systems, programs and services; 4 In R.A. 7160
otherwise known Local Government Code it states that subject to civil service law,
rules and regulations, local officials and employees paid wholly or mainly from local
funds shall be appointed or removed, according to merit and fitness, by the appropriate
appointing authority;5 In this case, since government doctors are considered public
employees, they are subject to civil service laws; whatever violation they make shall be
determined by the appropriate appointing authority-the Secretary of Health.
A government doctor is considered a public official because it works in the
government. As defined in Section 3 of R.A. 6713, "Public Officials" includes elective
and appointive officials and employees, permanent or temporary, whether in the career
or non-career service Government doctors fall into the category of career service
employees because they are personnel of government-owned or controlled
corporations, whether performing governmental or proprietary functions. In the same
section, Government "includes the national government, the local governments, and all
other instrumentalities, agencies or branches of the Republic of the Philippines including
government-owned or controlled corporations, and their subsidiaries. 6 Thus,
Department of Health is one of the instrumentalities of the Republic of the Philippines
because it is government-owned or controlled by the Government.
Republic Act No. 10354 otherwise known as Responsible Parenthood and
Reproductive Health Act of 2012 is a law in which allows Filipinos to be given
healthcare information and services7, one of which includes the information about non-
natural birth control remedies. The constitutional validity of the duty to inform and duty
to refer under R.A. 10354 are interrelated. However it is necessary to distinguish one
from the other. What was being considered as a violation is the refusal of these
governmental doctors to give advice on non-natural birth control remedies because of
their faith. Under Section 23(a.1) of the R.A. No. 10354, it prohibits the acts of any
health care service provider whether public or private who shall knowingly withhold
information or restrict the dissemination thereof, and/or intentionally provide incorrect
information regarding programs and services on reproductive health including the
right to informed choice and access to a full range of legal, medically-safe, non-
abortifacient and effective family planning methods.8 This provision aims to ensure
that all persons who are qualified to avail of the benefits provided by RH Law in this
particular section, shall be given complete information on the reproductive health
programs and services of the government under this Act. This provision does not
provide any exception to the duty to inform. Thus, a government doctor who is a
conscientious objector is still mandated to provide complete and correct information
even if this includes information on non-natural birth control remedies against his
religious belief or faith. Failure to comply will result to the penal liability under the law.
A doctor of medicine is considered as a healthcare service provider in Section
4(n.2) of R.A. No. 10354. A conscientious objector refers to a practicing skilled health
professional who refuses to provide legal and medically safe reproductive health care
within the scope of his or her professional competence, on the grounds that doing so is
against his or her ethical or religious convictions. However, skilled health professionals
such as provincial, city, or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors.9
Meanwhile the duty to refer that is provided in Section 23(a.3) states that those
public health providers who refuse to extend quality health care services and
information on account of the persons marital status, gender, age religious convictions,
personal circumstances or nature of work: Provided, that the conscientious objection of
a health care service provider based on his/her ethical or religious beliefs shall be
respected; however, the conscientious objector shall immediately refer the person
seeking such care and services to another health care provider within the same
facility or one which is conveniently accessible: Provided, farther, that the person is
not in emergency condition or serious case..10
The duty to refer on the conscientious objector is limited to referring the person to
another health care service provider for purposes of availing health care services
only; this does not include providing information about health care services. This
suggests that the government doctor who is a conscientious objector has the duty to
refer the person to another health care service provider if it is against his religious or
ethical beliefs to give service for purposes of availing health care services. This
interpretation is in accord with Section 23(a.1) of the RH Law, which gives no
exceptions to the duty to inform.
Section 23(a.1) pertains to government doctors who have the duty to give
information regarding non-natural remedies. Refusal of these governmental doctors
under Section 23(a.1) is considered as a violation because a person who goes to a
health service provider merely inquires about the governments reproductive health
program and services provided under the R.A. No. 10354. It is the right of the person
to be provided with complete information thereon, including the right to informed
choice and access to full range of legal, medically-safe, non-abortifacient and effective
family planning methods.
It is wrong for a government doctor to claim that this act of giving complete and correct
information, including information on artificial contraceptives, imposes a burden on a
conscientious objector because it is against his faith. The law merely requires the
health service provider to give complete and correct information. The does not
compel the health service provider to endorse a particular family planning
method but merely requires the presentation of complete and correct information so
that the person can make an informed choice. The mere inquiry of the person shows
that he or she has not yet decided as to whether or not they will avail of one of the
government reproductive health service programs and services under the R.A. 10354.
Section 23(a.1) does not compel the doctor to refer, only to inform. Refusal is an
indication of violation.
Article IV, Section 22 of the Code of Ethics of the Board of Medicine also states
that a true physician does not base his practice on exclusive dogma or sectarian
system for medicine is a liberal profession. It has no creed, no party, no master. Neither
is it subject to any bond except that of truth. A physician should keep abreast of the
advancement of medical science; contribute to its progress; and associate with his
colleagues in any of the recognized medical societies, so that he may broaden his
horizon through the exchange of ideas, and in order that he may contribute his time,
energy, and means towards making these societies represent the ideas of the
profession.11

For having studied medical science, doctors who refuse to advice non-natural birth
control remedies should realize that the practice of medicine is more of a privilege and
right, and therefore the government has the right to revoke this privilege once it sees
that these doctors cannot carry out to give due regard to the health and welfare of his
patient, as mandated by his Hippocratic Oath. As a doctor, they know that it is their duty
to serve the society in terms of helping them instil health consciousness as what Article
II, Section 15 has states. Doctors should be aware that the study of medicine is ever
changing and always progressing. If they refuse to keep abreast of the advancement of
medical science, they fail to contribute to its progress and eventually they will lose their
essence as doctors. The ethical obligation to serve the public is integral to the practice
of medicine. They are expected to subordinate their own interests and beliefs in order to
serve others, even those they dislike or disagree with. Therefore an act or omission
done by him against the law because of his own interest and belief will result to
penalties.
The fact that these doctors work for government custodies, they are expected to
follow Section 4(e) of R.A. 6713 otherwise known as Code of Conduct and Ethical
Standards for Public Officials and Employees, which compels every public official and
employee to ensure openness of information. They are accountable to the public
and should uphold the public interest over their private interest.12 To refuse in
giving advice is considered as a neglect of their duty as a public official or employee
because it is one of their functions as a public official/employee. Thus, they can be
subject for penalties that are provided under R.A. 6713. As a public official or employee,
they are bound by the rules given by this Act, with appropriate authority of Department
of Health.
II. PENALTIES
A government doctor refuses to advice regarding non-natural birth remedies
because of his faith is considered as a violation and is considered as a neglect of duty
Thus, he or sheshall be penalized under R.A. 6713. Section 11 states that, any public
official or employee, regardless of whether or not he holds office or employment in a
casual, temporary, holdover, permanent or regular capacity, committing any violation of
this Act shall be punished with a fine not exceeding the equivalent of six (6) months'
salary or suspension not exceeding one (1) year, or removal depending on the gravity of
the offense after due notice and hearing by the appropriate body or agency.13
Therefore, the DOH Secretary can file for an administrative case on the grounds for
neglecting of duty and its penalties shall be based on Section 11 of RA 6713.

Conclusion:
Doctors, generally speaking, can use conscientious objector as a ground for
refusal once they are faced with the situation of referring a person who asks for availing
the programs and services under R.A. 10354. However, the mere task of giving
information is not a ground for claiming as a conscientious order because Section 23
(a.1) does not provide exemptions to anyone in giving information even if the doctor is
against RH Law because as a doctor, he is bound by his oath that the interest of the
public shall prevail over their private interest and has the duty to serve them regardless
of his belief. As a government employee he is also bound by the law given in Section 4
of R.A. 6713, failure to comply shall result to penalty. The Department of Health can file
an administrative case on the ground of neglecting the duties as a government official or
employee and shall be punished with a fine of not exceeding the equivalent of six
months salary or suspension not exceeding 1 year, or removal depending on the
gravity of the offense after due notice and hearing by the appropriate body or agency.

Sources:

1. Bernas, J. (2009). The 1987 Constitution of the Philippines: A Commentary (p.

89). Manila. Rex Publishing House.
2. Bernas, J. (2009). The 1987 Constitution of the Philippines: A Commentary (p.
1269). Manila. Rex Publishing House.
3. (2010). Mandates and Functions. Retrieved from
http://ro1.doh.gov.ph/index.php/transparency-seal/mandates-and-functions
4. Executive Order 102, s. 1999. Retrieved from
http://www.gov.ph/1999/05/24/executive-order-no-102-s-1999/
5. Local Government Code of 1991. Retrieved from
http://www.lawphil.net/statutes/repacts/ra1991/ra_7160_1991.html
6. R.A. 6713, Section 3. Code of Conduct and Ethical Standards for Public Officials
and Employees
7. R.A. 10354. Responsible Parenthood and Republic Health Act of 2012
8. R.A. 10354, Section 23(a.1). Responsible Parenthood and Republic Health Act of
2012
9. R.A. 10354, Section 4(n.2). Responsible Parenthood and Republic Health Act of
2012
10. R.A. 10354, Section 23(a.3). Responsible Parenthood and Republic Health Act of
2012
11. Art. IV, Section 22. Code of Ethics of Board of Medicine
12. R.A. 6713, Section 4(e). Code of Conduct and Ethical Standards for Public
Officials and Employees
13. R.A. 6713, Section 11. Code of Conduct and Ethical Standards for Public
Officials and Employees