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by Cristina Alarcon I would like to address today what I see as
a great flaw in our current code of ethics – the failure to provide for
the accommodation of conscience and religion.
Before I develop this however, I would like to touch on the
international recognition of the dignity of the individual because such
dignity is for all people whether, in our context, patients seeking
medical services broadly construed, or those who provide them whether
medical services personnel or pharmacists.
Both the Charter of the United Nations of 1945 and the
Universal Declaration of Human Rights of 1948, a document to which
Canada is a signatory, affirm the dignity and the intrinsic worth of
every individual human being. Proclaimed immediately after the
atrocities of WWII, the Human Rights Declaration, article I, states,
“all human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood”. In other words, we are
intellectual, moral and social beings of great worth. Our worth as
people cannot turn on the fact that we agree with one another about
everything. Our worth and dignity exist despite our disagreements and it
is a measure of our civil freedoms and democratic maturity how we as
nations, or as groups within nations, manage disagreement and dissent.
On November 16th, 1994, the Canadian Pharmacy Association presented a
Government Brief to the Senate Committee studying euthanasia and
assisted suicide.1
I quote: “ From an ethical perspective, should euthanasia be legalized,
the pharmacists we consulted feel that the right to chose must be
safeguarded at all levels of the decision making process and that the
right to chose must be respected. The physician, the pharmacist, the
nurse should have a right to take part or not in assisting a person once
he or she has reached a decision to put an end to his or her life.
Should they elect not to participate, their duty to their patient
requires that they refer them to health professionals who will assist
them”.
Although the brief states that the Canadian Pharmacists Association
has not taken a position on this issue, the fact is that it has taken a
very clear position on the duty to refer. I would also argue that not
taking a position is already taking a position. In this case, the
Association is clearly upholding one side of a debate that is understood
to have two valid sides - - unless, that is, the ideology of choice at
all costs has somehow trumped the conscience and beliefs that our own
Constitution safeguards as a “fundamental right and freedom.” In fact,
the Associations’ lack of firm opposition to euthanasia leads to its
support by default. Thus it ought to reconsider the meaning of its own
mandate, which is “The Protection of the Public Health Shall be of Prime
Consideration”. It could perhaps consider reformulating it to: “ The
Protection of the Public Choice Shall be of Prime Consideration”.
I have chosen to quote this statement because it truly encompasses what
I see as the problem with our current Code of Ethics (value VIII).
Although there may be some pharmacists who will not suffer conscience
pangs for referring their patient to be euthanized by a colleague, there
may be those who would have to refuse to do so and not see it as part of
their duty towards their patient at all to refer them to their own
deaths.
You may wonder why I chose to make my point by choosing an extreme,
hypothetical example. However, I would argue that if it is being talked
about, it is not so hypothetical.
In 1992, the Department of Bioethics at The Hospital for Sick Children
in Toronto published a book by Francois Baylis and Jocelyn Downie called
“Ethics Codes, Standards, and Guidelines for Professionals working in a
Health Care Setting in Canada." As the title suggests, this book is a
compilation of the codes of ethics and professional guidelines of the
many professions working in health care settings in Canada. In the
introduction the authors state that codes of ethics, standards, and
guidelines are documents that outline behavioral and procedural
standards of a profession. Typically, they go on, these documents
include a set of principles or rules that establish the standards of
ethical practice:
“It is important to note that while some may see the publication
of this collection as advocating unthinking adherence to a set of
codified principles and rules, this is not an objective of the book.
An individual’s conscience must always inform his or her actions
even in the presence of a professional code, standards, or
guidelines”. (emphasis added).
Though some of you may disagree, a Code of Ethics or set of
principles should never replace individual conscience. What does this
mean in practice?
To enforce mandatory referral for an action that I myself would not
perform, and worse still, to mandate that I perform such an action if no
one else is available to do so (as Value VIII of the Code of Ethics
advocates) is like telling me to shut down my conscience for an instant.
To shut down one’s conscience is to stop dialoguing with oneself, to
stop thinking deeply about life, about the consequences of one’s present
and future. It means to be content with being a cog in a wheel, the
excuse used by those who had participated in the atrocities at
Auschwitz. Freedom of expression and conscience matter in a society
because they are, in part, our means of keeping debates alive on
important issues.
Euthanasia is not yet legal in Canada. However, other contentious
issues already exist and may continue to arise which may produce moral
dilemmas for some pharmacists. The fact that the College would prohibit
a pharmacist from objecting to participate in any way in a procedure
he/she finds morally abhorrent is quite worrisome.
I would like to quote ethicist Teresa Iglesias2, Senior
lecturer in Philosophy at the National University of Ireland in Dublin.
She says, “A human being is an ethical being, personally responsible for
choices between what is good and bad, right or wrong. A central tenet of
the medical profession is to do good and not to harm the patient (a
truth expressed in the so-called principles of beneficence and non-maleficence).
This truth is enshrined in our recognition of the dignity and worth of
what and who we are. It is the minimum requirement for our natural
flourishing and development as trustful human beings.” The principles of
beneficence and non-maleficence, she says, are bedrock principles. They
are givens and do not need to be proven. They constitute the basis of
all human relations of all times. This constitutes the ethical
foundation of our practice in the medical profession. Teresa then goes
on to explain that the Medical profession is intrinsically ethical. It
is something good in itself, and its goodness is not derived from
extrinsic sources such as religion or social customs, or the views of
society, or the views of individual healthcare professionals or
patients. Its intrinsic value, she argues, lies in its being a practice
dedicated to a human good, that is, the pursuit of healing and caring
for those who are sick. In other words, the promotion of health is the
aim of medicine, a good aim in itself.
Now, Iglesias proposes some very interesting questions for discussion:
Is Medicine (I add Pharmacy) a morally-neutral activity, value-free,
like science or technology? Are doctors/(pharmacists), primarily
scientists rather than healers? Does Medicine have intrinsic ethical
principles, or can these be created and are they external to the
profession?
Professor Iglesias believes that Medicine is intrinsically ethical, and
I would have to agree with her. If health is the aim of medicine, and
health is a good aim or goal, then medicine must be ethical in itself.
Iglesias proposes two models for the practice of medicine [pharmacy];
one which has ethics as intrinsic to practice, the other which has
ethics as extrinsic to practice (as an add-on, let us say). The two
diagrams below can exemplify this.
I propose that we need to rediscover the traditional aim of medicine as
a healing profession, and by the same token, of pharmacy as a
complementary (but not subservient or inferior) healing profession.
At present the ethics of the healthcare professions is increasingly
allowing itself to be influenced and run by external factors such as
politics, the fashion, ideologies, and religion. This is what some are
calling Ethics in Practice. When ideologies prevail which some of us
strongly believe to be morally untenable or believe actually harm our
patients, those who disagree need to have recourse to conscientious
objection. Our current Code of Ethics (Value VIII) does not provide for
this option in practice.
In Jan/Feb 2006, the College of Physicians and Surgeons of Ontario
featured a story in one of their publications entitled “Staying on
Course: Marrying Ethics and Practice”.3 In this feature
Professor and Bioethicist Abbyann Lynch was interviewed. Among other
things, Professor Lynch has been working with the College since 1996,
running a one-on-one ethics course for individuals referred by the
Discipline, Complaints or Executive Committees. Lynch believes that it’s
easy to parrot back what an article or policy states; what she wants to
see, however, is whether the doctor can use his “moral imagination,”
i.e. Can the doctor explain why certain actions or behaviors are simply
unacceptable? The challenge for the doctors in her course, for any
doctor (and I would add for any pharmacist or other healthcare
professional), is to “marry ethics and practice”.
Dr. Lynch goes on to quote a line from a book she highly recommends
called “The Virtues in Medical Practice”: “Can a sick person be healed -
made whole again - when he is suspicious of the motives and methods of
his healer?........ Trust must be engendered and built up gradually by
fidelity to promise from the very first moments of professional
relationship. It is a fragile phenomenon as it is an ineradicable
dimension of a helping and healing relationship.”
While the above book co-authored by Dr. Edmund Pellegrino, a physician,
and Professor David Thomasma, a philosopher, is addressed mainly to
physicians, I think that it could be very worthwhile reading for us
pharmacists as well.
If the College of Pharmacists is concerned about spelling out every one
of our actions in a Code for fear that pharmacists will not know how to
behave in case of ethical conflict, then perhaps the best thing it could
do is to supply educational resources and encourage its members to
assist at the yearly events such as the Ethics Conference sponsored by
the College of Physicians and Surgeons of B.C.
Part of this study will be the framework within which ethical codes
of professional bodies function in Canadian law. Accommodation of
conscience and religion is a Charter Right within Section 2(a) of the
Canadian Charter of Rights and Freedoms. According to Iain Benson, legal
academic and constitutional lawyer, this sets out a positive duty for
all law (and Codes of Conduct for professional bodies as well) to
recognize the place for individual conscience and religion and to
accommodate “up to the point of undue hardship” these beliefs. The test,
according to Benson, is not, that the officiating body
agree with the position of the person opposed on conscientious or
religious grounds. In fact, religious beliefs or conscientious beliefs
are to be respected without a weighing of whether the body agrees with
them or not. Recent decisions of the courts suggest that there is a
legal requirement to provide for reasonable accommodation and that
failure to do so indicates a faulty understanding of pluralism and
dignity.
A paper recently written by Iain Benson and being published in a U.S.
Law Journal clearly shows how the courts have approached religious
belief and accommodation.4 It is not, Benson states, for a
State at large or the court in its judicial functions, however, to
either go beyond a simple test of “sincerity” or “honesty of belief” or
to require that there be an objective obligation, on the part of a
religious body, in order to satisfy the test of “religious belief.” The
reticence of the State and the law to delve into these matters is
because, according to Chief Justice McLachlin:
“the State [and subordinate bodies within it are] … is in no
position to be, nor should it become, the arbiter of religious
dogma. Accordingly, courts should avoid judicially interpreting and
thus determining, either explicitly or implicitly, the content of a
subjective understanding of religious requirement, “obligation”,
precept, “commandment”, custom or ritual. Secular judicial
determinations of theological or religious disputes, or of
contentious matters of religious doctrine, unjustifiably entangle
the court in the affairs of religion.” 5
Citing an American constitutional scholar, Chief Justice McLachlin
cautions against too rigorous a search for “sincerity” or “honesty” on
the part of the person claiming religious liberty recognition and states
that:
“The court’s role in assessing sincerity is intended only to
ensure that a presently asserted religious belief is in good faith,
neither fictitious nor capricious, and that it is not an artifice.
Otherwise, nothing short of a religious inquisition would be
required to decipher the innermost beliefs of human beings.” 6
The implications of these approaches are clear. Once a pharmacist
indicates a sincerely held conscientious or religious objection to a
practice such a belief must be accommodated up to the level of undue
hardship.
Justice Gonthier, in dissent in the Chamberlain decision
of the Canadian Supreme Court, stated, and no other judge disagreed with
these statements, that:
“it is a feeble notion of pluralism that transforms ‘tolerance’
into ‘mandated approval or acceptance’” and that “the inherent
dignity of the individual not only survives such moral disapproval,
but to insist on the alternative risks treating another person in a
manner inconsistent with their human dignity.” 7
In other words, we can politely agree to disagree, and can best
respect the dignities of all involved in a disagreement by not
mandating approval, thus allowing for a plurality of philosophical
thought and ideas in our society (and within our College).
He went on to make the following trenchant remarks about use and abuse
of “tolerance” arguments:
[L]language espousing “tolerance” ought not be employed as a
cloak for the means of obliterating disagreement. Section 15 of the
Charter protects all persons from discrimination on
numerous enumerated and analogous grounds, including the grounds of
religion and sexual orientation. Language appealing to “respect”,
“tolerance”, “recognition” or “dignity”, however, must reflect a
two-way street in the context of conflicting beliefs, as to do
otherwise fails to appreciate and respect the dignity of each person
involved in any disagreement, and runs the risk of escaping the
collision of dignities by saying “pick one.” But this cannot be the
answer. In my view, the relationship between s. 2 and s. 15 of the
Charter, in a truly free society, must permit persons who
respect the fundamental and inherent dignity of others and who do
not discriminate, to still disagree with others and even disapprove
of the conduct or beliefs of others. Otherwise, claims for “respect”
or “recognition” or “tolerance”, where such language becomes a
constitutionally mandated proxy for “acceptance”, tend to obliterate
disagreement. 8
The implications of the above passages are clear. Although
Chamberlain was a case about whether certain books were suitable
for kindergarten to grade 2 classrooms, its principles are relevant to
religion and conscience. It clearly shows that generally in making
decisions, “charter values” have been held by the courts to be important
guides for decision makers. The College must accommodate the conscience
and beliefs of its members and must not use its own views or those
wishes of medical patients to trump them - - such accommodation being
limited only by “undue hardship.” In most settings this sort of hardship
will not be present.
We have seen, above, Benson explains, how some commentators place a
“requirement of approval” on the list of things necessary to respect the
dignity of the person as a “pick one” [one person’s dignity over that of
another] approach rather than an “exemption and accommodation” approach.
In other words, some people believe that there should only be one way of
looking at life and that it’s just tough luck for all those who
disagree. It is just such an approach the College would be taking if it
continues to fail to respect the conscience of its members. It is an
approach that I and others believe will not survive legal challenges if
and when they arise. The right to dissent and the right not to refer
are, as the Canadian Medical Association has recognized, part of the
appropriate accommodation of beliefs in Canadian society. Simply put,
the Pharmacists are out of step.
Furthermore, in having put together a Code of Ethics that mandates
referral and provision of services to which a pharmacist is morally
opposed, the College (and those who would try to uphold such approaches)
are acting outside of the requirements and protections currently
mandated by Canadian law. As such, I strongly recommend that you revise
the Code to properly reflect what the Canadian Charter already protects
and accord those of us who love our jobs the respect for our dignity and
freedom of conscience and religious beliefs that all citizens of this
country are supposed to enjoy.
Respectfully submitted,
Cristina Alarcon.
May 3, 2007
Footnotes:
1. See CPhA website Government Briefs: Living and Dying with
Dignity- Studying Euthanasia and Assisted Suicide. November 16th, 1994
2. Iglesias Teresa, The Dignity of the Individual. Issues of
Bioethics and Law, Pleroma Press, Ireland, 2005.
3.
http://www.cpso.on.ca/publications/Dialogue/JanFeb06/ethics.htm
4. Iain T. Benson. The Freedom of Conscience and Religion in
Canada: Challenges and Opportunities, 21st Emory
International Law Review 101 –154 (forthcoming, 2007)
5. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at
para. #50, emphasis added. American Constitutional Law (2nd ed.
1988), at pp. 1245-46,
6. Ibid. at para. 52, citing L. H. Tribe, American Constitutional
Law (2nd ed. 1988), at pp. 1245-46,
7. Chamberlain v. Bd. of Trustees of School Dist. No. 36 (Surrey)
(Chamberlain), [2002] 4 S.C.R. 710. at 788.
8. Id. at 789 (emphasis added).
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