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II. Preliminaries
II.1 Before dealing with substantive questions it is necessary to draw attention
to a number of points that are highly relevant to the discussion, but which are
usually overlooked.
Belief: religious and otherwise
II.2 It has become an article of faith with many, especially many holding public
positions, that faith has no place in public and professional life. This is
evident in the dogmatic assertion by the OHRC of its belief that physicians
“must essentially ‘check their personal views at the door’ in providing medical
care.” 8
II.3 The OHRC claim calls to mind comments made by Dr. James Robert Brown in
2002. A professor of science and religion of the University of Toronto, Dr.
Brown offered a simple solution for health care workers who don’t want to be
involved with things like abortion or contraception. These “scum” - that was his
word - should “resign from medicine and find another job." His reasoning was
very simple.
Religious beliefs are highly emotional - as is any belief that is
affecting your behaviour in society. You have no right letting your private
beliefs affect your public behaviour.9
II.4 Now, when Dr. Brown declared that no one should be allowed to let
private belief affect public behaviour, he was doing precisely that. He was
acting publicly upon his private belief that conscientious objectors in health
care should not be allowed to act publicly upon theirs. Dr. Brown did not
explain why this should be so, but others have made the attempt.
II.5 Religious beliefs, so the argument goes, are unreliable and divisive
because they are unscientific, essentially ‘private’ and ‘personal’ in nature.
It is said that they must be banished from public affairs in a secular society
in the interests of social harmony, progress and, now, human ‘rights.’
Proponents of this view point to religious wars and persecutions throughout
history to justify their claims. However, considered within a broader social and
historical context that includes the oppressive and frequently bloody pursuit of
secular objectives in the French Revolution, Stalinist Russia and Nazi Germany,
the argument is unpersuasive. And it becomes even less persuasive in the case of
individuals.
II.6 For example: after ten years of bloody wars, the ancient Indian emperor Asoka became a Buddhist, and decided that he should rule his people like a
father, with “morality and social compassion.” Among other things, he provided
them with free hospitals and veterinary clinics, and built new roads and rest
houses for travellers. In other words, Asoka let his private beliefs affect his
public behaviour.10 Like Mother Theresa of Calcutta - who also let her private
beliefs influence her public behaviour - Asoka is still revered in India,
nicknamed “the saint.”
II.7 Moving from ancient times into the last century, one recalls that fewer
than half the Canadians who landed at Dieppe in 1942 made it back. The Royal
Hamilton Light Infantry landed with 582 men; 365 were killed or taken prisoner.11
John Foote was honorary chaplain to the regiment. For eight hours, repeatedly
exposing himself to “an inferno of fire,” he assisted the Regimental Medical
Officer, going out to the wounded, carrying them to shelter, and, later,
carrying them on his back to evacuation landing craft. Ultimately, he chose to
stay on the beach and be taken prisoner with those left behind.12
II.8 Asoka, Mother Theresa and John Foote were religious believers, but it is
false to assert that only religious believers are motivated by belief. In 1915,
at Ypres, Canadian physician Francis Scrimger ordered the evacuation of his
dressing station, but remained behind to stabilize a wounded officer. As shells
dropped around him, demolished the building and set it on fire, he shielded his
patient with his own body as he worked, and then carried the larger man to
safety through an artillery barrage.13
Foote, a Presbyterian minister, and Scrimger, “an atheist by outward appearances,”14
both acted in accordance with
their personal beliefs; both were awarded the Victoria Cross.
II.9 If one accepts the logic of Professor Brown, Scrimger deserved the award
but Foote did not, because Foote had no business letting his religious beliefs
influence his public behaviour. On the other hand, the stated policy of the
Ontario Human Rights Commission would deny both recognition, on the broader
grounds that both failed to ‘check their personal views at the door’ when the
bullets started to fly.
II.10 The stories of Foote and Scrimger may remind physician members of the
College Council of countless colleagues in the profession who, through the
centuries, have died of contagious and incurable diseases contracted because
they refused to abandon their patients. Not a few of this number were motivated
by personal beliefs, religious or otherwise, but the profession has never taken
towards them the attitude now demanded of it by the Ontario Human Rights
Commission.
II.11 All public behaviour - how one treats other people, how one treats
animals, how one treats the environment - is determined by what one believes.
All beliefs influence public behaviour. Some of these beliefs are religious,
some not, but all are beliefs. That human dignity exists -or that it does not -
or that human life is worthy of unconditional reverence - or merely conditional
respect - and notions of beneficence, justice and equality are not the product
of scientific enquiry, but rest upon faith: upon beliefs about human nature, the
meaning and purpose of life, the existence of good and evil.
II.12 Disputes about morality - about the morality of contraception, assisted
suicide, stem cell research or artificial reproduction - are always, at the
core, disputes between people of different beliefs, whether or not those beliefs
are religious. “Everyone ‘believes’,” writes social critic Iain Benson. “The
question is, what do we believe in and for what reasons?”
Once we realize that everyone necessarily operates out of some kind of faith
assumptions we stop excluding analysis of faith from public life. We cannot
simply banish “religious” faiths from our common conversations about how we
ought to order our lives together while leaving unexamined all those “implicit
faiths” in such areas as public education, medicine, law or politics.15
Establishment "consensus" and "the ethics of the profession"
II.13 It
might be argued that Professor Brown’s declaration expressed, not just a private
conviction, but a broad public consensus, a consensus of serious establishment
thinkers (like members of the OHRC), or, perhaps, a consensus reflecting “the
ethics of the profession.”16
II.14 However, this kind of ‘consensus’ is typically achieved by taking into
account only opinions consistent with ethical, moral or religious presuppositions
that are congenial to a dominant elite. The resulting ‘consensus’ is, in
reality, simply the majority opinion of like-minded individuals, not a genuine
ethical synthesis reflecting common ground with those who think differently.17 Unfortunately, this usually becomes clear only when
documents like Physicians and the Ontario Human Rights Code become public
knowledge, and those excluded from the table make themselves heard.
II.15 More to the point, to identify beliefs as ‘private’ or ‘personal’ does not
help to resolve a question about the exercise of freedom of conscience. The
beliefs of many conscientious objectors, while certainly personal in one sense,
are actually shared with tens of thousands, or even hundreds of thousands or
hundreds of millions of people, living and dead, who form part of great
religious, philosophical and moral traditions. If their beliefs are ‘private,’
those of Professor Brown, the College Council and the OHRC are not less so.
Disputes about what counts as ‘private’ or ‘public’ thus end in a stalemate.
II.16 The question does not turn on privacy, but truth. If the College Council
possess a moral vision that is superior to that of objecting physicians, it is
clear that Council’s superior moral views ought to prevail. But, in that case,
Council members should be able and willing to explain first, why they are better
judges of morality than objecting physicians, and, second, why their judgement
should be forced upon unwilling colleagues. Avoiding the issue by hiding
behind noble sounding phrases like “the ethics of the profession” will not do.
Limits to expression
II.17 It is argued that there are limits to the exercise of freedom of
conscience and religion. This is hardly a new proposition. Oliver Cromwell said
as much 400 years ago.
As for the People [of Ireland], what thoughts they have in matters of
Religion in their own breasts I cannot reach; but shall think it my duty, if
they walk honestly and peaceably, Not to cause them in the least to suffer for
the same. And shall endeavour to walk patiently and in love towards them to see
if at any time it shall please God to give them another or a better mind. And
all men under the power of England, within this Dominion, are hereby required
and enjoined strictly and religiously to do the same.18
But to act publicly upon religious belief was, for Cromwell, another matter.
. . . I shall not, where I have the power, and the Lord is pleased to
bless me, suffer the exercise of the Mass . . . nor . . . suffer you that
are Papists, where I can find you seducing the People, or by any overt act
violating the Laws established; but if you come into my hands, I shall cause
to be inflicted the punishments appointed by the Laws.19
II.18 Cromwell, the Supreme Court of Canada and the Ontario Human Rights
Commission all agree that “the freedom to hold beliefs is broader than the
freedom to act on them.”20 So, for that matter, do those who support freedom of
conscience in health care. The principle is not in dispute. What is in dispute
is where the line between belief and expression is to be drawn, and what is to
be done with those who cross it. The Irish did not share Cromwell’s views about
where the line should be drawn, nor is it clear that there is anything
approaching a consensus in Canada on this point. So it is useful to remember
Oliver Cromwell and the Irish when social and political elites begin to sound like the
Lord Protector.
The needs of the patient: anthropology counts
II.19 What is conducive to human well-being is determined by the nature of the
human person. There can be no agreement upon what is good for the patient
without first agreeing upon that. One’s understanding of the nature of the human
person determines not only how one defines the needs of the patient, but how one
approaches every moral or ethical problem in medicine.
II.20 Reasoning from different beliefs about what man is and what is good for
him leads to different definitions of “need,” different understandings of
“harm,” different concepts of right and
wrong, and, ultimately, to different ethical conclusions.21
II.21 Consider two different statements: (a) man is a creature whose purpose for
existence depends upon his ability to think, choose and communicate; b) man is a
creature for whom intellect, choice and communication are attributes of
existence, but do not establish his purpose for existence. Statements (a) and
(b) express non-religious belief, not empirically verified fact. Such beliefs -
usually implicit rather than explicit - direct the course of subsequent
discussion.
II.22 Bioethicists working from (a) would have little objection to the
substitution of persistently unconscious human subjects for animals in
experimental research.22 Those who accept (b) would be more inclined to object.23 Finally, bioethicists who do not believe in ‘purpose’ beyond filling an
ecological niche would dismiss the whole discussion as wrong-headed.
II.23 What must be emphasized is that when people cannot achieve a consensus
about the morality of a procedure, it is frequently because they are operating
from different beliefs about the nature of the human person. Disagreement is
seldom about facts - the province of science - but about what to believe in
light of them - the province of philosophy and religion.
II.24 These considerations also apply when one attempts to rationally limit
freedoms or balance conflicting rights claims.
Social contract
II.25 One frequently encounters references to a “social contract” between the
medical profession and society, especially in discussions about the meaning of
“professionalism.”24 The Royal College of Physicians has
suggested that, in relation to medical practice, it is more accurate to speak of
a “moral contract” between society and the profession.25
Others have argued that the concept of a social “covenant” provides a better
framework for ethical reflection.26
II.26 It is important to recognize that, whether the term of choice be contract
or covenant, or the contract be social or moral, all such notions are convenient
fictions. The Oxford Companion to Philosophy makes the point:
Contract, social: The imaginary device through which equally imaginary
individuals, living in solitude (or, perhaps, nuclear families) , without
government, without a stable division of labour or dependable exchange
relations, without parties, leagues, congregations, assemblies or
associations of any sort, come together to form a society, accepting
obligations of some minimal kind to one another, and immediately or very
soon thereafter binding themselves to a political sovereign who can enforce
those obligations.27
II.27 Theories of ‘contract’ and ‘convenant’ are tools that can be usefully
employed to explore different aspects of human relationships, but they become
dangerous when they are thought to offer adequate explanations of those
relationships, or when one moves from speculative discussion and analysis to the
enforcement of purported obligations. It is also necessary to recall that claims
about the precise content of a contract become especially intense when the
parties involved disagree.
Social contract and
socialized medicine
II.28 Socialized medicine has been and continues to be a great benefit to many
people, but little attention has been paid to the dynamic of expectation that
arises when the state assumes primary responsibility for the delivery of health
care. Health care providers come to be seen as state employees, and citizens
begin to believe that they are entitled to demand from health care providers the
services they have paid for through taxes.
II.29 In this case it is argued that there is an actual rather than theoretical
social contract for the provision of health care, and that the state and the
medical profession are parties to it. Nonetheless, given the nature and
complexity of health care, much of the precise content of such a contract must
remain undefined, so that conflicts like the one now faced by the College will
arise. The problem becomes especially acute when legal but morally controversial
procedures are the focus of the conflict.
II.30 Citizens are likely to expect the state to enforce what they consider to
be the terms of the contract against reluctant employees and other health care
providers through institutions like the College of Physicians and the OHRC.
However, even if one posits the existence of a contract, such an expectation
ignores two key points.
II.31 First: the terms of the contract on this issue have never been defined or
settled. It is a matter of fact that, in assisting in the birth of medicare, the
medical profession did not agree that its members would, from that point,
deliver every service demanded by the public, regardless of their conscientious
convictions. The state, a party to the contract, can ask that it be
re-negotiated, but cannot unilaterally demand that the profession “read in”
non-existent provisions.
II.32 Second: even if physicians have become de facto employees of the state
since the introduction of public health care, it does not follow that they
cannot exercise freedom of conscience and religion. On the contrary: as
employees of a “service industry,” they are entitled to the same accommodation
of freedom of conscience and religion available to employees of other service
industries.
II.33 The standard - set out by the OHRC itself - is that they must be
accommodated to the point of undue hardship.28 Given the
enormous resources available to their employer - the state - it is difficult to
imagine under what circumstances it might experience “undue hardship” in the
delivery of health care. Not incidentally, physicians are also entitled to
demand that their employer - the state - not permit their workplace environments
to be poisoned against them by state institutions, like the OHRC.
Fiduciary duty
II.34 Moving from imaginary devices to actual law, some writers assert that the
fiduciary duties of physicians requires them to subordinate their conscientious
convictions to those of their patients. Professors R.J. Cook and B.M. Dickens
have made this claim,29 citing the Supreme Court of Canada case, McInerney v.
MacDonald.30
II.35 However, McInerney had absolutely nothing to do with conflicts of
conscience. It concerned the duty of a physician to release a patient's medical
records to her upon request, and the nature of fiduciary relationships was not
discussed at length. Moreover, the Court ruled that fiduciary relationships and
obligations are “shaped by the demands of the situation”; they are not governed
by a “fixed set of rules and principles.” Mr. Justice La Forest, writing for the
court, stated, “A physician-patient relationship may properly be described
as‘fiduciary’ for some purposes, but not for others.”31 In
other words, that the physician patient relationship is fiduciary for the
purpose of disclosing patient records does not imply that it is fiduciary for
the purpose of suppressing the conscientious convictions of the physician.
II.36 Finally, the court in McInerney accepted the characterization of
the physician-patient relationship as “the same . . . as that which exists in
equity between a parent and his child, a man and his wife, an attorney and his
client, a confessor and his penitent, and a guardian and his ward.”32
Pursuing the analogy, no one has ever suggested that the fiduciary obligations
of parents, husbands, attorneys, confessors, and guardians require them to
sacrifice their own integrity to the “desires” of others. McInerney does
not even remotely imply that physicians have such a duty.33
Legality
II.37 It is also said that health care workers cannot refuse to provide any
legal procedure, as if the legality of the procedure were sufficient to impose a
duty to provide it upon either the profession as a whole or individual
physicians. It can be shown that this is not yet the case, though the OHRC
appears to be taking this position.
11.38 Sex selective abortion: There is no law against sex-selective
abortion in Canada, nor against determining the sex of an infant before birth.
Nonetheless, the Deputy Registrar of the College of Physicians and Surgeons of
British Columbia was horrified in August, 2005, when he learned that a pre-natal
gender testing kit was being marketed on the internet. Dr. T. Peter Seland,
described gender selection as “immoral.” He explained that College policy was
not to disclose the sex of a baby until after 24 weeks gestation in order to
reduce the risk of gender selection, and that physicians violating the policy
were liable to be disciplined by the College.34 This
clearly indicates that the legality of a procedure is not reason enough to
compel a health care worker to provide it.
II.39 Amputation: In 1999, Dr. Robert Smith of Scotland performed single
leg amputations on two patients who desired the amputation of healthy limbs. The
surgery was performed with the permission of the Medical Director and Chief
Executive of the hospital, in a National Health Service operating theatre with
NHS personnel, after consultation with the General Medical Council and
professional bodies.35 The procedures were legal and even
deemed ethical by regulatory authorities, but, to date, no one has argued that
this is sufficient reason to oblige surgeons to amputate healthy limbs upon
request, and to compel physicians to refer for such surgery.
II.40 Execution: Capital punishment is legal in a number of
jurisdictions. 35 of the 38 American states that use lethal injection as a means
of execution permit the participation of physicians, and 17 of them require it.
“Thirteen jurors, citizens of the state, have made a decision,” explained one
physician who assists with executions. “And if I live in that state and that’s
the law, then I would see it as being an obligation to be available.”36
The law is the law, after all. However, despite the legality of the procedure,
and in defiance of the laws that actually require the attendance of physicians,
the Code of Ethics of the American Medical Association forbids the participation
of physicians in executions,37 and those who ignore the ban
risk losing their licenses to practise.38 In the face of
pending decision of the American Supreme Court, a guest editorial commented on
the obvious conflict between the expectations of the law and the attitude of
physicians:
In their fuller examination of Baze v. Rees, the justices should
not presume that the medical profession will be available to assist in the
taking of human lives . . .The future of capital punishment in the United
States will be up to the justices, but the involvement of physicians in
executions will be up to the medical profession.39
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III. The problem
of complicity
Meaning
of Physicians and the Ontario Human Rights Code
III.1 At first glance, the College draft policy Physicians and the Ontario
Human Rights Code and subsequent clarification by the President are
contradictory and confusing. On the one hand, the draft policy states that
“there may be times when it may be necessary for physicians to set aside their
personal beliefs,” and implies that those who fail to do so face prosecution for
professional misconduct or human rights offences.40 On the
other, the President has publicly stated that “the College does not expect
physicians to provide medical services that are against their moral or religious
beliefs.”41
III.2 The apparent contradiction is resolved by attending more closely to the
President’s statement. College officials do not expect physicians to
provide services that they believe to be wrong (i.e., perform or assist
in an abortion, for example), but this does not preclude a demand that they
facilitate the provision of such services (by arranging for abortion). And this
is exactly what the draft policy proposes:
Tell patients about their right to see another physician . . . If
patients or potential patients cannot readily make their own arrangements to
see another doctor or health care provider, physicians must ensure
arrangements are made, without delay, for another doctor to take over their
care.42 (emphasis added)
Similarly, the draft policy strongly implies that physicians are obliged to
help individuals arrange for artificial reproduction.43 In
principle, there is no reason why such a rule would not extend to any other
morally controversial procedure.
III.3 It thus appears that College officials are working from what might be
called the ‘Absolutionist Premise:’ that someone who merely arranges for an act
is absolved of moral responsibility because only someone who actually does an
act is morally responsible for it. In the words of the American College of
Obstetricians and Gynecologists, “the logic of conscience, as a form of
self-reflection on and judgement about whether one’s own acts are obligatory or
prohibited, means that it would be odd or absurd to say, “I would have a guilty
conscience if she did X.”44
III.4 Alternatively, College officials may admit that some moral responsibility
is incurred by referral or by otherwise facilitating a procedure, but that the
degree of responsibility is sufficiently diminished in such cases that it is of
no real significance. Call this the ‘Dismissive Premise.’
III.5 On either account, the position of College officials raises the issues
discussed in paragraphs II.12 to II.15. Whether they assert that referral or
facilitation do not incur moral responsibility, or that the degree of moral
responsibility incurred is so minimal as to be inconsequential, they are making
a moral judgement and demanding that others adhere to it.
Complicity in torture
III.6 The Absolutionist Premise is illustrated by the opinion of Newsweek
columnist Jonathan Alter. In the weeks following the terrorist attacks on the
United States in September, 2001, Alter argued that it was time to think about
torturing terrorist suspects who might have information about plans for such
horrendous crimes. He acknowledged that physical torture was "contrary to
American values," but argued that torture is appropriate in some circumstances,
and proposed a novel ‘compromise:’ that the United States turn terrorist
suspects who won’t talk over to "less squeamish allies,"45 a
practice known as “extraordinary rendition.” The allies would then do what
Americans would not, without compromising American values.
III.7 Less than a year later, Canadian citizen Maher Arar, returning home from
Zurich through New York, was detained, interrogated and “rendered” to Syria by
U.S. authorities.46 In Syria he was imprisoned for almost
a year, “interrogated, tortured and held in degrading and inhumane conditions.”47
III.8 A subsequent “comprehensive and thorough” investigation “did not turn up
any evidence that he had committed any criminal offence” and disclosed “no
evidence” that he was a threat to Canadian security.”48
College Council will recall that a commission of inquiry was appointed to
investigate “the actions of Canadian officials” in the case.49
III.9 What was of concern to Mr. Arar, the public and the government was whether
or not Canadian officials had caused or contributed to what happened to Mr. Arar,
even though his deportation to Syria was effected by the United States, and
Syrian officials imprisoned and tortured him. The key issue was whether or not
Canada was complicit in torture.
III.10 Concern about Canadian complicity surfaces repeatedly in the report of
the commission of inquiry: in briefing notes to the Commissioner of the RCMP,50 in the testimony of the Canadian Ambassador to Syria,51
in references to the possibility of RCMP complicity in his deportation,52 about the perception of complicity if CSIS agents met Mr. Arar in Syria,53
in the suggestion that evidence of complicity could show “a pattern of
misconduct,”54 and in the conclusions and recommendations
of the report itself.55
III.11 The issue of complicity arose again in 2007 when a report in Toronto’s
Globe and Mail alleged that prisoners taken in Afghanistan by Canadian
troops and turned over to Afghan authorities were being mistreated and tortured.56 “Canada is hardly in a position to claim it did not know
what was going on,” said the Globe. “At best, it tried not to know; at
worst, it knew and said nothing.”57 On this view, one can
be complicit in wrongdoing not only by acting, but by failing to act, and even
by silence. The Globe editorial brings to mind the words of Martin Luther King
and Mahatma Ghandi.58
III.12 Thus far the complicity of government officials. But The Lancet,
among others, has asked, “How complicit are doctors in the abuse of detainees?”59
and other journal articles have explored the answer with some anxiety.60
III.13 The Arar Inquiry, the concerns raised by the Globe and Mail story
about Afghan detainees and the alarm raised about physician complicity in
torture make sense only on the presumption that one can be morally responsible
for acts actually committed by another person. The Absolutionist Premise does
not provide a plausible starting point for moral reasoning.
Complicity in capital punishment
III.14 The Dismissive Premise is more promising. Granted that one can be
morally responsible for acts actually committed by another, there may be
differences of opinion about what kind of action or omission incurs such
responsibility. These differences need not be thoroughly canvassed in this
paper. It is sufficient to ask if the kind of action required by the draft
policy could have that effect. That is: if a physician refers or otherwise helps
a patient to obtain what be believes to be an immoral procedure, is he a
culpable participant in the provision of the procedure?
III.15 The issue of culpable participation in a morally controversial procedure
has been considered by the American Medical Association in its policy on capital
punishment.61 It forbids physician participation in executions, and defines
participation as
(1) an action which would directly cause the death of the condemned;
(2) an action which would assist, supervise, or contribute to the ability of
another individual to directly cause the death of the condemned;
(3) an action which could automatically cause an execution to be carried out
on a condemned prisoner.
III.16 Among the actions identified by the AMA as “participation” in
executions are the prescription or administration of tranquillizers or other
drugs as part of the procedure, directly or indirectly monitoring vital signs,
rendering technical advice or consulting with the executioners, and even (except
at the request of the condemned, or in a non-professional capacity) attending or
observing an execution.
III.17 The attention paid to what others might consider insignificant detail is
exemplified in the provision that permits physicians to certify death, providing
that death has been pronounced by someone else, and by restrictions on the
donation of organs by the deceased.
III.18 The AMA also prohibits physician participation in torture. Participation
is defined to include, but is not limited to, “providing or withholding any
services, substances, or knowledge to facilitate the practice of torture.”62
The Canadian Medical Association, while not faced with the problem of capital
punishment, has voiced its opposition to physician involvement in the punishment
or torture of prisoners. The CMA states that physicians “should refuse to allow
their professional or research skills to be used in any way” for such purposes.63
Complicity and referral
III.19 While referral is not mentioned in the AMA policy on capital punishment,
nor in the Canadian or American policies on torture, one cannot imagine that
either the AMA or CMA would agree that physicians who refuse to participate in
torture or executions should be made to “ensure arrangements are made, without
delay” to find a substitute. In fact, it is likely that both the CMA and AMA
would censure a physician who did so voluntarily, on the grounds that such
conduct would make him complicit in a gravely immoral act.
III.20 In any case, it is reasonable to hold that the kind of action required by
Physicians and the Ontario Human Rights Code is the same kind of action that
is defined as “participation” in the AMA policies on capital punishment and
torture. The model provided by the AMA policy indicates that, in principle, at
least, it is not unreasonable for physicians to refuse to refer patients for
procedures to which they object for reasons of conscience, on the grounds that
referral would make them complicit in a wrongful act.
III.21 The point here, of course, is not that capital punishment or torture are
morally equivalent to artificial reproduction, contraception or other
controversial medical procedures. The point is that, when professional
associations are convinced that an act is seriously wrong - even if it is legal
- one finds them willing to refuse all forms of direct and indirect
participation in order to avoid moral complicity in the act. This is precisely
the position taken by conscientious objectors in health care.
Complicity and "dirty hands"
III.22 Having considered the problem of complicity, it is now worth asking why
the subject of complicity in wrongful acts is not only of grave concern to
ethical physicians, medical journals, and professional associations, but why it
can so thoroughly arouse the public, the media, and politicians: why commissions
of inquiry will so meticulously investigate the possibility of complicity,
producing hundreds upon hundreds of pages of detailed analysis of the evidence
taken, at no little cost to the public purse.
III.23 A jaded few will respond that reports of scandal will always sell
newspapers, that scandal always energizes the self-righteous (both the religious
and the politically-correct varieties) and that scandal is one of the
traditional weapons used against opponents by politicians of all stripes. There
is some truth to this, but, going deeper into it, why is complicity in
wrongdoing scandalous?
III.24 The answer must be that there is something about complicity in wrongdoing
that triggers an almost instinctive reaction in people, something about it that
touches some peculiar, deep and almost universal sense of abhorrence. One says
“almost” instinctive and “almost” universal because, of course, there have
always been exceptions: Eichmanns, Pol Pots, Rwandan machete men, for example.
And the degree of sensitivity varies from person to person, from subject to
subject, and from one culture to another. Nonetheless, complicity in wrongdoing
can be a source of scandal, a political weapon and the subject for public
inquiries only because it has some real and profound significance.
III.25 The nature of that significance is suggested by a number of expressions:
“poisoned” fruit doctrine, “tainted”evidence, money that has to be “laundered,”
and “dirty” hands. A senior Iraqi surgeon, commenting on the complicity of
physicians in torture under Saddam Hussein, said that “the state wanted them to
have ‘dirty hands’.”64 In contrast, some writers refer
approvingly to a “dirty hands principle”:
Philosopher Sidney Axinn tells us the Dirty Hands principle "holds that
in order to govern an institution one must sometimes do things that are
immoral." He goes on to say that advocates would claim that "we do not want
leaders who are so concerned with their own personal morality that they will
not do `what is necessary' to ... win the battle.... We have an inept leader
if we have a person who is so morally fastidious that he or she will not
break the law when that is the only way to success" (Axinn, 1989: 138).65
But whichever view one takes of “dirty hands,” all of these expressions
convey an uncomfortable sense that something is felt to be soiled by complicity
in wrongdoing. What is that something? And what is the nature of that cloying
grime?
III.26 The answer suggested by the Project is that the “something” is not a
“thing” at all, but the human person, and that the sense of uncleanness or taint
associated with complicity in wrongdoing is the natural response of the human
person to something fundamentally opposed to his nature, well-being and dignity.
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IV. The human person
The integrity of the human person
IV.1 The physician, a unique someone who identifies himself as “I” and “me,”66 has
only one identity, served by a single conscience that governs his conduct in
private and professional life. This moral unity of the human person is
identified as integrity, a virtue highly prized by Martin Luther King, who
described it at as essential for “a complete life.”67
[W]e must remember that it's possible to affirm the existence of God with
your lips and deny his existence with your life. . . . We say with our
mouths that we believe in him, but we live with our lives like he never
existed . . . That's a dangerous type of atheism.68
IV.2 Against this, some writers have invoked the venerable concept of
self-sacrifice. “Professionalism,” Professor R. Alta Charo suggests
rhetorically, ought to include “the rather old-fashioned notion of putting
others before oneself.”69
IV.3 But self-sacrifice, in the tradition of King, Gandhi and Lewis, while it
might mean going to jail or even the loss of one’s life, has never been
understood to include the sacrifice of one’s integrity. To abandon one’s moral
or ethical convictions in order to serve others is prostitution, not
professionalism. “He who surrenders himself without reservation,” warned C.S.
Lewis, “to the temporal claims of a nation, or a party, or a class” - one could
here add ‘profession’ - “is rendering to Caesar that which, of all things,
emphatically belongs to God: himself.”70
IV.4 The integrity or wholeness of the human person was also a key element in
the thought of French philosopher Jacques Maritain. He emphasized that the human
person is a “whole, an open and generous whole” that to be a human person
“involves totality.”
71
The notion of personality thus involves that of totality and independence; no
matter how poor and crushed a person may be, as such he is a whole, and as a
person subsists in an independent manner. To say that a man is a person is to
say that in the depth of his being he is more a whole than a part and more
independent than servile.72
IV.5 This concept is not foreign to the practice of modern medicine. Canadian
ethicist Margaret Somerville, for example, asserts that one cannot overemphasize
the importance of the notion of ‘patient-as-person’ and acknowledges a “totality
of the person” that goes beyond the purely physical.73
The dignity and
inviolability of the human person
IV.6 “Man,” wrote Maritain, “is an individual who holds himself in hand by his
intelligence and his will.”
He exists not merely physically; there is in him a richer and nobler existence;
he has spiritual superexistence through knowledge and through love.74
IV.7 Applying this principle, Maritain asserted that, even as a member of
society or the state, a man “has secrets that escape the group and a vocation
which the group does not encompass.”75 His whole person is engaged in society
through his social and political activities and his work, but “not by reason of
his entire self and all that is in him.”
76
For in the person there are some things - and they are the most important
and sacred ones - which transcend political society and draw man in his
entirety above political society - the very same whole man who, by reason of
another category of things, is a part of political society.
77
IV.8 Even as part of society, Maritain insisted, “the human person is
something more than a part;”78 he remains a whole, and must be treated as a whole.79
A part exists only to comprise or sustain a whole; it is a means to that end.
But the human person is an end in himself, not a means to an end.80
Thus,
according to Maritain, the nature of the human person is such that it “would
have no man exploited by another man, as a tool to serve the latter’s own
particular good.”81
IV.9 British philosopher Cyril Joad applied this to the philosophy of democratic
government:
To the right of the individual to be treated as an end, which entails his
right to the full development and expression of his personality, all other
rights and claims must, the democrat holds, be subordinated. I do not know
how this principle is to be defended any more than I can frame a defence for
the principles of democracy and liberty.82
In company with Maritain, Professor Joad insisted that it is an essential
tenet of democratic government that the state is made for man, but man is not
made for the state.83
IV.10 To reduce human persons to the status of tools or things to be used for
ends chosen by others is reprehensible: “very wicked,” wrote C.S. Lewis.84 Likewise, Martin Luther King condemned segregation as “morally wrong and awful”
precisely because it relegated persons “to the status of things.”85
IV.11 Similarly, Polish philosopher Karol Wojtyla (later Pope John Paul II):
. . . we must never treat a person as a means to an end. This principle
has a universal validity. Nobody can use a person as a means towards an end,
no human being, nor yet God the Creator.86
IV.12 Maritain, Joad, Lewis, King and Wojtyla reaffirmed in the twentieth century what
Immanuel Kant had written in the eighteenth: “Act so that you treat humanity,
whether in your own person or in that of another, always as an end and never as
a means only.”87
Human dignity and freedom
of conscience
IV.13 Perhaps ironically, this was the approach taken when Madame Justice Bertha
Wilson of the Supreme Court of Canada addressed the issue of freedom of
conscience in the landmark 1988 case R v. Morgentaler. Madame Justice Wilson
argued that “an emphasis on individual conscience and individual judgment . . .
lies at the heart of our democratic political tradition.”88 Wilson held that it
was indisputable that the decision to have an abortion “is essentially a moral
decision, a matter of conscience.”
The question is: whose conscience? Is the conscience of the woman to be
paramount or the conscience of the state? I believe. . . that in a free and
democratic society it must be the conscience of the individual. Indeed, s.
2(a) makes it clear that this freedom belongs to "everyone", i.e., to each
of us individually.89
IV.14 “Everyone” includes every physician. But, at this point in the
judgement, Wilson was not discussing whether or not the conscience of a woman
should prevail over that of an objecting physician, but how the conscientious
judgement of an individual should stand against that of the state. Her answer
was that, in a free and democratic society, “the state will respect choices made
by individuals and, to the greatest extent possible, will avoid subordinating
these choices to any one conception of the good life.”90
IV.15 Quoting the above passage from Professor Joad’s book, Wilson approved the
principle than a human person must never be treated as a means to an end -
especially an end chosen by someone else, or by the state. Wilson rejected the
idea that, in questions of morality, the state should endorse and enforce “one
conscientiously-held view at the expense of another,” for that is “to deny
freedom of conscience to some, to treat them as means to an end, to deprive them
. . .of their ‘essential humanity’.”91
IV.16 In the tradition of Kant, C.S. Lewis, Martin Luther King, Cyril Joad and
Karol Wojtyla, and following Madame Justice Wilson, for the OHRC or the College
of Physicians and Surgeons to demand that physicians provide or assist in the
provision of procedures or services that they believe to be wrong is to treat
them as means to an end and deprive them of their “essential humanity.”
IV.17 The OHRC proposes physicians, as a matter of principle and even as a
matter of law, can be compelled to do what they believe to be wrong, and that
they can be punished if they do not. It is the position of the Project that this
is a blasphemy against the human spirit. Applying to the Commission’s demands
the words of Alexander Solzhenitsyn, “To this putrefaction of soul, this
spiritual enslavement, human beings who wish to be human cannot consent.”92
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V.
Physicians and the Ontario Human Rights Code
Policy
V.1 According to Physicians and the Ontario Human Rights Code, “physicians
should be aware that the College is obliged to consider the [Human Rights] Code
when determining whether physician conduct is consistent with the expectations
of the profession. Compliance with the Code is one factor the College will
consider when evaluating physician conduct.”
V.2 The College acknowledges that it “does not have the expertise or the
authority to make complex, new determinations of human rights law,” which
suggests that it believes that it has the expertise and authority to apply
existing human rights law. Even if one accepts this opinion, prudence suggests
that compliance with the Code should not be a significant factor in the
College’s assessment of a case except in the clearest of cases.
V.3 Complaints involving physicians who have declined to do something for
reasons of conscience or religion are not the clearest of cases. The profound
and complex issues involved and the far-reaching consequences of decisions in
such cases afford the College good reason to confine its review to issues
clearly within its competence, and leave human rights issues to be dealt with
directly by those who profess to have the requisite expertise and authority.
Providing medical services without discrimination
V.4 Physicians who decline to do something they believe to be wrong are not
discriminating against individuals on grounds prohibited by the Ontario Human
Rights Code. Their concern is to avoid direct or indirect complicity in
wrongdoing, not with the personal characteristics, status or inclinations of a
patient.
Moral or religious beliefs
V.5 In its discussion of physician-patient conflicts arising from the religious
convictions of the physician, Physicians and the Ontario Human Rights Code makes
no clear distinction between the needs of a patient and the desires of a
patient, referring at one point to needs,
93 and at another to “a patients’s need
or desire.”94 This must be clarified, because the difference between “need” and
“desire” is significant. Similar clarification is necessary with respect to the
meaning of “require,”95 since it can be interpreted to mean either a
bona fide
need for treatment, or a demand by the patient that may or may not reflect such
a need.
V.6 The draft policy acknowledges that “[p]ersonal beliefs and values and
cultural and religious practices are central to the lives of physicians and
patients.” However, given what follows, it is clear that this is merely a pro
forma observation that contributes nothing of substance to the document.
V.7 Physicians and the Ontario Human Rights Code states that physicians whose
moral or religious beliefs affect their practise of medicine should “proceed
cautiously." Added to this is a warning that physicians who “restrict medical
services offered” on the basis of their conscientious convictions may be
prosecuted for professional misconduct or violations of the Human Rights Code,
and that, should that occur, they will have “no defence.” This must be read in
conjunction with the principal policy statement concerning moral or religious
beliefs:
. . . as a physician’s responsibility is to place the needs of the
patient first, there will be times when it may be necessary for physicians
to set aside their personal beliefs in order to ensure that patients or
potential patients are provided with the medical treatment and services they
require.
V.8 Taken together, these statements indicate that the exercise of
fundamental freedoms of conscience and religion by physicians is barely
tolerable, even indefensible, and that physicians will sometimes be expected to
do what they believe to be wrong.
V.9 It is unclear whether this is meant as a friendly warning or a veiled threat.
In either case, a free people grateful for hard-won liberties bequeathed to them
by the likes of John Foote and Francis Scrimger will find it profoundly
offensive and demeaning.
V.10 For reasons explained in Part IV, it is unreasonable to suggest that
a physician ought to sacrifice his personal integrity by conforming to a request
or demand that he do something he believes to be wrong. The suggestion is
based upon an erroneous understanding of the concept of sacrifice.
No hierarchy of rights
V.11 According to Physicians and the Ontario Human Rights Code, “there is no
hierarchy of rights in the Charter; freedom of religion and conscience, and
equality rights are of equal importance.”96
V.12 In the relevant passage in the judgement cited to support the statement,
the court addressed arguments from religious groups that to grant persons of the
same sex the legal right to ‘marry’ would threaten their religious freedoms. The
intervening Interfaith Coalition had expressed concern that “religions whose
beliefs preclude the recognition of same-sex marriage could find themselves
required to participate in such marriages, or be discriminated against because
of their beliefs.” The court, however, did not think the concern was valid,
because “there is no hierarchical list of rights in the Charter, and freedom of
religion and conscience must live together with s. 15 equality rights.”
One cannot trump the other. . . the equality rights of same-sex couples do not
displace the rights of religious groups to refuse to solemnize same-sex
marriages which do not accord with their religious beliefs. Similarly, the
rights of religious groups to freely practise their religion cannot oust the
rights of same-sex couples seeking equality, by insisting on maintaining the
barriers in the way of that equality.97
V.13 In the event of a collision between freedom of conscience and religion and
equality rights, it is not clear how the issue can be adjudicated if Canadian
courts insist that there is “no hierarchy of rights,” except by applying the
personal, social, moral, philosophical or political views of the adjudicator. In
any case, the reference to the non-hierarchical arrangement of Charter rights
does not support the view that physicians are obliged to “set aside their
personal beliefs” when faced by demands that they provide services or procedures
to which they object for reasons of conscience. If the passage has any relevance
to the exercise of freedom of conscience by physicians, it is that it cannot
be trumped by the kind of appeal to equality rights that is being made by the OHRC.
Interference with others
V.14 According to Physicians and the Ontario Human Rights Code, the “[f]reedom
to exercise genuine religious belief does not include the right to interfere
with the rights of others.”98
V.15. The single sentence in the case to which this statement refers appears a
part of the judgement that discusses the failure of the BC College of Teachers
to balance religious freedom against other freedoms.
Students attending [Trinity Western University] are free to adopt
personal rules of conduct based on their religious beliefs provided they do
not interfere with the rights of others. Their freedom of religion is not
accommodated if the consequence of its exercise is the denial of the right
of full participation in society.99
V.16 In essence, the court was, in this part of the judgement, reiterating
the view that one Charter right cannot trump another, and that restriction on
the exercise of religious freedom of teachers can only be justified by evidence
that the restriction is required to prevent some kind of “detrimental impact on
the school system.”
V.17 The College draft statement contains two significant words: “genuine” and
“interfere.” The former does not appear in the judgement cited, and it is not
clear what purpose it serves in the College document. The substantive meaning of
the statement turns entirely upon what constitutes “interference.”
V.18 The significance of the draft statement in the present context is whether or
not refusing to participate in what one holds to be a wrongful act can
constitute “interference” with another’s “rights,” and (considering the case
cited) how this could have a “detrimental impact”on the delivery of health care.
V.19 Even if one believes that such a refusal does constitute interference and
does have some kind of detrimental impact, one moves no further towards a
satisfactory resolution of the conflict. The demand by a patient that a
physician do what he believes to be wrong can also be characterized as
“interference” with another’s rights, and it can also be said to have a
“detrimental impact” on the delivery of health care, since it can hardly be
maintained that medical ethics will be vastly improved if the only physicians
permitted to practice are those willing to do what they believe to be wrong.
V.20 Like the reference to the non-hierarchical arrangement of rights in the
Charter, the second statement in the College draft document does not support the
view that physicians are obliged to “set aside their personal beliefs” when
faced by demands that they provide services or procedures to which they object
for reasons of conscience.
Freedom is limited
V.21 According to Physicians and the Ontario Human Rights Code, “the right to
freedom of religion is not unlimited, it is subject to such limitations as are
necessary to protect public safety, order, health, morals or the fundamental
rights or freedoms of others.”100
V.22 One of the cases cited to support the statement concerns a teacher who,
when not working, was locally notorious for his virulently anti-semitic public
statements and writings that were reasonably perceived to have poisoned the
school environment against Jewish students.
101 It is not clear what relevance this
case has to that of a physician who refuses to participate in what he considers
to be a wrongful act, unless the College believes a physician who refuses to do
what he believes to be wrong is a threat to public safety, order, health, morals
or the fundamental rights or freedoms of others.
V.23 The leading case cited is the origin of the wording used in the draft
statement. A Calgary drug store was charged under the Lord’s Day Act for
operating on Sunday. The Supreme Court of Canada struck down the Act because its
“acknowledged purpose” was “the compulsion of religious observance” and employed
“a form of coercion inimical to the spirit of the Charter,” thus offending its
guarantee of freedom of religion and conscience.102
V.24 The first point to note is that what the College document puts forward as a
case that supports limitation of religious freedom was actually about the
importance of religious freedom and the need to protect religious minorities in
a country “from the threat of ‘the tyranny of the majority.’” The principle has
application in the case of a physician threatened by the College or the OHRC for
refusing to do what he believes to be wrong, but not in the way suggested by the
draft document.
V.25 The part of the judgement from which the College draft policy was drawn
deserves to be quoted at somewhat greater length:
A free society is one which aims at equality with respect to the
enjoyment of fundamental freedoms, and I say this without any reliance upon
s. 15 of the Charter. Freedom must surely be founded in respect for the
inherent dignity and the inviolable rights of the human person. . . .
. . . .One of the major purposes of the Charter is to protect, within
reason, from compulsion or restraint. . . . Freedom in a broad sense
embraces both the absence of coercion and constraint, and the right to
manifest beliefs and practices. Freedom means that, subject to such
limitations as are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others, no one is to be
forced to act in a way contrary to his beliefs or his conscience.
V.26 In this passage, Mr. Justice Dickson was emphasizing the importance of
religious freedom, not the importance of restricting or suppressing it. Again,
the College draft policy does not contribute to the resolution of potential
conflicts between a physician and a patient who demands that he do something he
believes to be wrong.
Balancing and “core” beliefs
V.27 According to Physicians and the Ontario Human Rights Code, “courts will
consider how directly the act in question interferes with a core religious
belief;” and, further, “Courts will seek to determine whether the act interferes
with the religious belief in a ‘manner that is more than trivial or
insubstantial. The more indirect the impact on a religious belief, the more
likely courts are to find that the freedom of religion should be limited.”103
V.28 Neither of the cases cited to support the draft statement refers to or
distinguishes between direct and indirect impacts on religious belief. Neither
of the cases cited uses the term “core” religious belief. In fact, the principal
value of the leading case cited is found in the Supreme Court’s affirmation that
neither the state nor its courts are qualified to “to interpret and determine
the content of a subjective understanding of a religious requirement.” It is
open to the court only “to inquire into the sincerity of a claimant’s belief,
where sincerity is in fact at issue.”104 The College statement thus implies a more
restrictive approach to religious belief than was taken in either of the
decisions.
V.29 The leading case cited resulted in a split 5-4 decision. Five judges found
that infringement had occurred and that it was not trivial or insubstantial;
three ruled there was no infringement, except with respect to one of the
appellants, which they found to be legitimate; one held that an infringement had
occurred but was justifiable in view of the rights of others. The differing
views of the judges and a ruling by the bare majority suggests the unpredictable
nature of “rights-balancing” exercises that depend, ultimately, on an
adjudicator’s subjective views about the relative importance of religious belief
and other social concerns.
V.30 In the absence of any ordering principle, the introduction of the terms
“trivial” and “insubstantial” does not shed any additional light on the problem
of balancing conflicting rights and freedoms. Once more, the draft College
statement does not support the view that physicians are obliged to “set aside
their personal beliefs” when faced by demands that they do something they
believe to be wrong.
Professional misconduct
Providing information
V.31 The draft policy states that physicians must provide information and advice
to patients about all available procedures, even if they conflict with their
moral or religious beliefs. The expectation presumes either that the mere giving
of information or advice has no moral significance, or, if it does, that it is
inconsequential. This is not necessarily the case.
V.32 This is demonstrated by the policies of the AMA on physician participation
in execution and torture. The AMA prohibits physicians from rendering technical
advice or consulting with executioners or “providing . . .knowledge to
facilitate the practice of torture.” (See III.15-III.18) It is also demonstrated
by the policy of the College of Physicians and Surgeons of British Columbia,
which forbids disclosure to the parents of the sex of a child in utero. (See
II.37) Finally, in 2002, the General Medical Council in the United Kingdom
suspended the license of a physician for six months because he had provided
information about live donor organ transplantation to undercover reporters and
had thus encouraged the trade in human organs,105 even though he had not actually
participated in the trade.
V.33 The difficulty here is to balance the desire of a physician to avoid
complicity in a wrongful act with the importance of informed decision-making by
the patient, which requires that the patient have all of the information
relevant for the purpose of choosing a course of treatment. It is necessary to
respect both the freedom of conscience of the physician and the freedom and
right of the patient to make a fully informed choice.
V.34 One satisfactory compromise would see the physician explain all legal
options, including those he finds morally objectionable, and disclose the fact
and reasons for his objections. In this way, the patient obtains the information
he requires to make a fully informed choice, but the physician has not
compromised his own integrity by appearing to recommend a procedure that he
considers morally objectionable. In such circumstances it is important for the
physician to convey his position in a manner that does not provoke justifiable
concern about “preaching” or attempting to “convert” the patient to his opinion.
On the other hand, it is equally important to avoid gratuitous accusations of
“preaching” or attempting to “convert” the patient simply because the physician
has made his own views clear.
Treating with respect
V.35 The requirement that a physician not express personal judgements about the
lifestyle of a patient appears to preclude even discussion about smoking, the
need for a change of diet or an increase in exercise. Health and lifestyle are
usually related. The wording of the policy should be revised to reflect this.
V.36 The College should make clear that physician will not be considered to be
promoting his own religious beliefs or seeking to convert patients simply
because he has complied with ethical guidelines that require him to disclose
views that may influence his recommendations for treatment, or because he has
disclosed his views in circumstances described in VI.34.
V.37 Similarly, a complaint should not lie against a physician for expressing a
judgement about the patient by reason only
that he has complied with ethical guidelines that require him to disclose views
that may influence his recommendations for treatment, or that he has disclosed
his views in circumstances described in V.34.
Referral/facilitation
V.38 In support of its position, Physicians and the Ontario Human Rights Code
cites Personal Beliefs and Medical Practice, a policy document produced by
Britain’s General Medical Council.106 Paragraph 21 of that document asserts that an
objecting physician must provide a patient with contact information for a
colleague who will provide the controversial procedure. It also directs the
reader to the relevant passage in an earlier publication, Good Medical Practice
(2006),which advises physicians that if they have declined to provide a
procedure and advised a patient of his right to see another doctor, they must
“ensure that arrangements are made for another suitably qualified colleague to
take over” if it is not practical for the patient to do so.107
V.39 Physicians and the Ontario Human Rights Code did not explain why it
chose to refer to a British policy document rather than Canadian publications
like the CMA approved Joint Statement on Preventing and Resolving Ethical
Conflicts Involving Health Care Providers and Persons Receiving Care.108
V.40 In any case, the GMC documents do not appear to have taken into account
evidence taken in 2004 and 2005 by the British House of Lords Select Committee
on Assisted Dying for the Terminally Ill and the conclusions of the Committee.
The bill, in its original form, included a requirement that objecting physicians
refer patients for euthanasia. Numerous submissions protested this provision
because it made objecting physicians a moral party to the procedure,109 and the
Joint Committee on Human Rights concluded that the demand was probably a
violation of the European Convention on Human Rights.110 The bill’s sponsor, Lord Joffe, promised to delete the provision in his next draft of the bill.111
V.41 For the reasons set out in Part III and
Part IV, the requirement that an
objecting physician facilitate what he believes to be a wrongful act by
referring a patient or otherwise arranging for the provision of the treatment is
unacceptable.
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