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Protection of Conscience Project

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Service, not Servitude
Background

"NO MORE CHRISTIAN DOCTORS"

Part 5: Crossing the threshold


A dangerous idea

The difficult compromise described in Part 4 safeguards the legitimate autonomy of the patient and preserves the integrity of the physician, but it also protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong - even gravely wrong - and punish them if they refuse.

This, perhaps, was what was troubling a member of the Council of the College of Physicians of Ontario when, in September, 2008, the Council was considering a demand from the Ontario Human Rights Commission that the College suppress freedom of conscience among physicians. He drew his colleagues' attention to a chilling New England Journal of Medicine article by Holocaust survivor, Elie Wiesel: Without conscience.1 It was about the crucial role played by German physicians in supporting Nazi horrors. "How can we explain their betrayal?" Wiesel asked. "What gagged their conscience? What happened to their humanity?"2

Alexander Solzhenitsyn, reflecting on the same questions, suggested an answer:

Physics is aware of phenomena which occur only at threshold magnitudes, which do not exist at all until a certain threshold encoded by and known to nature has been crossed. . . .Evidently evildoing also has a threshold magnitude. Yes, a human being hesitates and bobs back and forth between good and evil all his life. . . But just so long as the threshold is not crossed, the possibility of returning remains, and he, himself is still within reach of hope. But when, through the density of evil actions, the result either of their own extreme degree or of the absoluteness of his power, he suddenly crosses that threshold, he has left humanity behind, and without, perhaps, the possibility of return.3

Current threats to freedom of conscience in health care

It is thus of grave concern that some activists, influential academics, powerful interests, state institutions and professional organizations have been working steadily to develop and entrench a 'duty to do what is wrong' in medical practice. The unsuccessful 1977 attempt to force physicians to facilitate what they believed to be wrong by changing the CMA Code of Ethics presaged their efforts. However, current 'duty to do what is wrong' activism is more widespread, more influential, more determined, more organized and better funded: sometimes tax-funded. Tactics have included, on occasion, publication of misleading claims4 and misrepresentations of law in professional journals.5

True to its roots, the present movement is driven by a determination to compel physicians and other health care workers to provide, participate in or facilitate abortion, contraception and related procedures. As a rule, they have been reluctant to demand that objecting physicians must actually perform or provide the procedures to which they object for reasons of conscience, usually for purely practical reasons.6 The more common approach, usually presented as a "compromise," is to compel objecting health care workers to refer patients for or otherwise facilitate the morally contested procedures or services.

Referral and moral complicity

In her book, Conflicts of Conscience in Health Care: An Institutional Compromise, Holly Fernandez Lynch cites and quotes several commentators to the effect that a physician who objects to a procedure for reasons of conscience should refer a patient to a willing provider.7 However, she also notes opposing arguments,8 and acknowledges that the issue is "among the more difficult aspects of the conscience clause debate:" in the words of one clearly frustrated professor, "absolutely intractable."9 This is because, as Fernandez Lynch acknowledges, referral imposes "the serious moral burdens of complicity."10

Long-standing legal, religious and moral principles hold that we can be held responsible for the actions of someone else. As a matter of law, for example, one can be charged for bank robbery if one assists the robber by providing the weapon used, even if one is absent when the robbery occurs; employers may be civilly liable for misconduct by their employees that they could have prevented.

Other examples can be cited to demonstrate that the principle of vicarious moral responsibility is widely accepted, deeply entrenched, and, if anything, becoming more important as people more fully appreciate the interconnectedness of the world.11 Health care workers who refuse to refer patients for something they judge to be wrong are not demonstrating excessive scrupulosity, but an adherence to the same principle that guides their fellow citizens in other situations. They are refusing to participate in wrongdoing. What counts as "participation" has been considered by the American Medical Association in its policy on capital punishment; it includes even offering advice or merely attending an execution.12

Dr. Charles Bernard, President and Director General of the Collège des médecins du Québec has concisely stated and appears to agree with the reasoning of physicians who refuse to refer for or facilitate morally contested procedures:

[I]f you have a conscientious objection and it is you who must undertake to find someone who will do it, at this time, your conscientious objection is [nullified]. It is as if you did it anyway. / Parce que, si on a une objection de conscience puis c'est nous qui doive faire la démarche pour trouver la personne qui va le faire, à ce moment-là notre objection de conscience ne s'applique plus. C'est comme si on le faisait quand même.13

Of course, if it is legitimate to force physicians to help patients obtain morally contested services or procedures like abortion, then it is legitimate to force objecting physicians to help patients obtain euthanasia and assisted suicide. One of the leading Canadian proponents of this view is Professor Jocelyn Downie of Dalhousie University.

Mandatory referral
Mandatory referral for abortion

In 2006 Jocelyn Downie was one of two law professors who wrote a guest editorial in the Canadian Medical Association Journal claiming that physicians who refuse to provide abortions for reasons of conscience had an ethical and legal obligation to refer patients to someone who would. This elicited a flood of protest, and the CMA reaffirmed its position that objecting physicians were not obliged to refer for the procedure, repeating the affirmation in 2008. The negative response to the editorial from the medical profession convinced Professor Downie that policy reform by the CMA was unlikely, so she turned her attention to provincial regulatory authorities to persuade them to force the medical profession to conform to her views.14(See Appendix "F")

Mandatory referral for assisted suicide/euthanasia

Professor Downie was also a member of the "expert panel" of the Royal Society of Canada that, five years later, recommended legalization of assisted suicide and euthanasia. The panel conceded that health care workers may object to providing euthanasia or assisted suicide, and that compelling them to do so might constitute a limitation of their "liberty or freedom of conscience and religion." For these reasons, Professor Downie and her expert colleagues recommended that health care professionals who object to euthanasia and assisted suicide should be compelled to refer patients to someone who would provide the procedures.15 Their explanation:

Today's procedural solution to this problem is, in Canada as well as many other jurisdictions, that health care professionals may provide certain reproductive health services that some religious health care professionals object to on conscientious grounds, however, they do not have to provide those services, in case the provision of those services would violate their conscience. Such objecting health care professionals are required to transfer an assistance seeking person on to other health care professionals who will provide the required services in a timely manner. The underlying rationale for this procedural solution lies in this kind of reasoning: If only health care professionals are permitted to provide assistance but they are not obligated to do so, then their autonomy is not limited but the autonomy of those seeking assistance could potentially be unfairly limited. Hence the requirement on conscientious objectors to refer assistance seekers to colleagues who are prepared to oblige them.16

Two points warrant attention here.

The first is that the panel argued that, because it is agreed that we can compel objecting health care professionals to refer for abortion, we are justified in forcing them to refer for euthanasia.

The second and more remarkable point is that, outside of Quebec, there is, in fact, no agreement that objecting health care professionals should be compelled to refer for abortions. Given the repudiation of her views by the CMA, Professor Downie must have been aware of that. This inconvenient fact was left out, apparently to make it appear that compulsory referral for euthanasia and assisted suicide is an entirely reasonable and uncontested "procedural solution" to the "problem" caused by people who refuse to do what they believe to be wrong. Presumably this accounts for the absence of any cited reference to back up their assertion.

Quebec Bill 52: Mandatory referral for euthanasia

An Act respecting end-of-life care (Bill 52) is intended to permit physicians, in defined circumstances, to kill their patients as part of the redefined practice of medicine.17 Submissions to a Quebec National Assembly Legislative Committee indicate that officials representing the profession are prepared to do so.18

Quebec is the only province in which the regulatory authority demands that objecting physicians assist patients to obtain the morally contested procedure. The Code of Ethics of the Collège des médecins du Québec demands that physicians who are unwilling to provide a service for reasons of conscience must "offer to help the patient find another physician."19 The gloss provided by the Collège mentions abortion and contraception and emphasizes the demand for active assistance by the physician.20

However, strictly speaking, the Code requires an offer of help, but does not specify what constitutes "help," nor does the gloss specify what is considered satisfactory assistance. In the Project's experience, physicians who wish to avoid becoming morally complicit in a procedure are usually willing to provide a patient with general information, such as the address of a registry of physicians maintained on the website of a regulatory authority. It could be argued that this suffices for compliance with the Code.

Testimony by officers of the Collège des médecins du Québec before the Committee on Health and Social Services of the Quebec National Assembly was unclear on this point. Dr. Charles Bernard, President and Director General of the Collège, considered conscientious objection to euthanasia to be analogous to conscientious objection to abortion.21 As noted above, he believes that referral results in moral culpability. Thus, he was pleased with the provision in the bill that requires an objecting physician to notify the institutional director of professional services, who is expected to find a replacement, because he felt that solved the problem of complicity, at least for the objecting physician.22 Dr. Michelle Marchand referred to "an obligation to transfer" (l'obligation de transférer), but she, too, was pleased with the idea of collective or institutional rather than individual responsibility.23

On the other hand, Claude Ménard, representing the Provincial Association of User Committees, insisted that health care professionals "must refer a user who wants to access terminal palliative sedation or medical assistance to die to another professional. . . even in private practice,"24 while Diane Lavallée of Quebec Association of Health Facilities and Social Services, noting the requirement in the physicians' Code of Ethics, said that the Association did not want objecting physicians relieved of the duty to help the patient find a doctor willing to provide euthanasia.25

Professor Downie also testified before the committee, but the issues of conscientious objection and referral were not raised.

Two perspectives on killing patients

As a matter of Canadian constitutional law, Bill 52 does not affect Canadian criminal law. Hence, no matter what the Bill purports to do, killing patients under the conditions specified by the act would constitute first degree murder (murder that is "planned and deliberate"26) and anyone counselling, aiding, abetting the killing (by referral, for example) would be considered a party to the offence.27

Now, if the bill becomes law, it is not inconceivable (and this is the hope of the Quebec government) that a court might rule that killing a patient in accordance with the Act is not murder under the criminal law. An undetermined number of physicians and health care workers would then begin or continue with killing patients under the terms of the law, in the belief that what they were doing was not only legal, but morally acceptable. In a sense, this would not be remarkable, because that sort of thing has happened in the past, and it is happening now, in Belgium and the Netherlands, for example.

Nonetheless, there is no doubt that most of those opposed to the bill in principle would, despite the ruling of the court, continue to consider euthanasia to be (morally) planned and deliberate murder. Having this view, it would come as no surprise if they were to refuse to kill patients or refuse to encourage or facilitate the killing of patients by counelling, referral or other means. And this would not be remarkable, because this has also happened in the past.

Normalizing mandatory participation in killing

It is at this point that one realizes the unique character of the 'duty to do what is wrong' movement, exemplified by Professor Downie and enshrined in the Collège des médecins du Québec Code of Ethics. Recall that, for Professor Downie and the other Royal Society panel of experts (and those who share their views) it is not sufficient to simply encourage and allow willing health care professionals to kill patients. They demand that health care professionals be compelled to participate in and facilitate the killing of patients - even if they believe it to be wrong, even if they believe it to be murder - and that they should be punished if they refuse to do so. This is quite extraordinary, even if there are precedents for it.

Killing is not surprising; even murder is not surprising. It has even been said that there is something uniquely human about murder. But to hold that the state or a profession can, in justice, compel an unwilling soul to commit or even to facilitate what he sees as murder, and justly punish or penalize him for refusing to do so - to make that claim takes us beyond Solzhenitsyn's threshold.

What about contraception?

Returning to the subject at hand, one might ask what connection exists between forcing an objecting physician to refer for or otherwise help a patient obtain contraception, forcing him to refer or help a patient to obtain an abortion, and forcing him to refer for or facilitate euthanasia and assisted suicide.

The connection between compulsory referral for abortion and compulsory referral for euthanasia has been made abundantly clear by Jocelyn Downie, the Royal Society panel of experts, and the gloss on the Collège des médecins du Québec Code of Ethics provided by the Collège.

The connection to contraception becomes obvious once one recognizes that, if one can legitimately force a physician to facilitate the killing of patients, it is rather difficult to explain why he should not also be forced to prescribe or at least refer for contraceptives.

Moreover, if one admits that it is unjust to force unwilling physicians to kill their patients or find someone who will, one arrives at the brink of a slippery slope.  It might lead to an admission that objecting physicians should not be forced to provide or refer patients for abortion - or contraceptives.  The whole tapestry of the 'duty to do what is wrong' movement might begin to unravel.  From their perspective, perhaps it seems better to cross Solzhenitsyn's threshold.


Notes

1.  Email to the Administrator, Protection of Conscience Project, from P__ H__ (present at College Council meeting 18 September, 2008) (2014-02-11, 10:10 am)

2.   Wiesel E. Without Conscience. N Engl J Med 352;15 april14, 2005. (Accessed 2014-02-24)

3.  Solzhenitsyn A.I. The Gulag Archipelago, 1918-1956: An Experiment in Literary Investigation. I-II. (Trans. Thomas P. Whitney) New York: Harper & Row, 1974, p. 174-175

4.  Murphy S. Conscientious Objection as a Crime Against Humanity. Protection of Conscience Project, 10 April, 2009.

5.  Murphy S. Postscript for the Journal of Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and Dickens. Protection of Conscience Project, 25 November, 2005

6.  In the case of abortion or any other surgical procedure, an objecting physician is unlikely to have the experience necessary to develop the technical skills required for safe and proficient practice. Moreover, patients may be reluctant to submit to the knife in the hands of a practitioner known to be wholly unwilling to provide a procedure.

7.   Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. xii-xiii (hereinafter "Conflicts.")

8.   Conflicts, p. 229-231

9.  Conflicts, p. 233. Quoting Veatch, Robert M., The Patient-Physician Relation: The Patient as Partner, Part 2. Bloomington Indiana University Press, 1991, p. 152

10.  Conflicts, p. 229

11.  The increasing popularity of 'ethical investment' reflects a belief that one is responsible for the good or the harm that flows indirectly from one's financial participation in a company. Many people adopt ethical investment as a strategy to preserve their personal integrity, whether or not their investment choices actually influence corporate policies. Similarly, a 44% increase in the sale of "fair trade" products in the United States is attributed to the exercise of 'social conscience' by more and more people who do not want to indirectly support unfair labour practices through their purchases. "I want to look good," explained one fair trade supporter, "but I don't want to feel guilty." Kim G. "Fashion conscience:clothing and accessories are becoming both free-trade and chic." Sacramento Bee, 30 July, 2005.  (Accessed 2005-07-31)

12.  AMA policy 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. Among the actions identified by the AMA as "participation" in executions are prescribing or administering 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. 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.  American Medical Association Policy E-2.06: Capital Punishment (Accessed 2008-09-08)

13.  Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: College of Physicians of Quebec (Tuesday 17 September 2013 - Vol. 43 no. 34)

14.  "(We decided to proceed by way of these provincial regulatory bodies rather than the CMA, in part, because of the negative reaction of the CMA to the Rodgers/Downie editorial, which made policy reform by the CMA seem unlikely.)" McLeod C, Downie J. "Let Conscience Be Their Guide? Conscientious Refusals in Health Care." Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv

15.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 101 (Accessed 2014-02-23)

16.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62 (Accessed 2014-02-23)

17.  However, Bill 52 does not actually require or authorize the killing of patients. The actual killing of patients under the conditions specified in the bill cannot become part of medical practice in Quebec unless the medical profession itself (broadly speaking) agrees. Murphy S. Redefining the practice of medicine: winks and nods and euthanasia in Quebec. Protection of Conscience Project.

18.  Protection of Conscience Project, Consultations & hearings on Quebec Bill 52. September-October, 2013

19.  Collège des médecins du Québec, Code of Ethics of Physicians, para. 24 (Accessed 2013-06-23)

20.  "For example, a physician who is opposed to abortion or contraception is free to limit these interventions in a manner that takes into account his or her religious or moral convictions. However, the physician must inform patients of such when they consult for these kinds of professional services and assist them in finding the services requested." Collège des médecins du Québec, Legal, Ethical and Organizational Aspects of Medical Practice in Québec. ALDO-Québec, 2010 Edition, p. 156. (Accessed 2013-06-23)

21.   Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: College of Physicians of Quebec (Tuesday 17 September 2013 - Vol. 43 no. 34)

22.   Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: College of Physicians of Quebec (Tuesday 17 September 2013 - Vol. 43 no. 34) (http://www.consciencelaws.org/background/procedures/assist009-001.aspx#154)

23.  Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: College of Physicians of Quebec (Tuesday 17 September 2013 - Vol. 43 no. 34)

24.  Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: Provincial Association of User Committees (Wednesday, 25 September 2013 - Vol. 43 no. 38 )

25.  Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52: Quebec Association of Health Facilities and Social Services (Wednesday, 25 September 2013 - Vol. 43 no. 38 )

26.  Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC") Section 231(2). (Accessed 2014-02-24)

27.  CC, Section 745(a); CC, Section 21(b); CC, Section 21(c); CC, Section 22 (Accessed 2014-02-24)

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