Emerging assault on freedom of conscience

Canadian Family Physician

Stephen J. Genuis

Discussion on physician autonomy at the 2014 and 2015 Canadian Medical Association (CMA) annual meetings highlighted an emerging issue of enormous importance: the contentious matter of freedom of conscience (FOC) within clinical practice. In 2014, a motion was passed by delegates to CMA’s General Council,and affirmed by the Board of Directors, supporting the right of all physicians, within the bounds of existing legislation, to follow their conscience with regard to providing medical aid in dying. The overwhelming sentiment among those in attendance was that physicians should retain the right to choose when it comes to matters of conscience related to end-of-life intervention. Support for doctors refusing to engage in care that clashes with their beliefs was reaffirmed in 2015. However, a registrar from a provincial college of physicians and surgeons is reported to have a differing perspective, stating “Patient rights trump our rights. Patient needs trump our needs.1

So, do the personal wishes of doctors hold much sway in Canadian society, where physicians are increasingly perceived as publicly funded service providers? Should the colleges of physicians and surgeons have the power to remove competent physicians who refuse to violate their own conscience?

And what about FOC in a range of other thorny medical situations unrelated to physician-assisted dying?

Genuis SJ. Emerging assault on freedom of conscience.  Canadian Family Physician April 2016 vol. 62 no. 4 293-296  [Full text]

 

A “uniquely Canadian approach” to freedom of conscience

Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide

Recommendations designed to broaden and maximize impact of Supreme Court ruling

Sean Murphy*

Abstract

The Experts’ recommendations are intended to extend and maximize the impact of the Carter ruling. They will effectively require all institutions, facilities, associations, organizations and individuals providing either health care or residential living for elderly, handicapped or disabled persons to become enablers of euthanasia and assisted suicide. This will entail suppression or significant restriction of fundamental freedoms.

The broader the criteria for the provision of morally contested procedures, and the more people and groups captured in the Experts’ enablers’ net, the greater the likelihood of conflicts of conscience.  Relevant here are recommendations to make euthanasia/assisted suicide available to mentally ill and incompetent persons, and to children and adolescents, even without the knowledge of their parents.

The Experts’ distinction between “faith-based” and “non-faith-based” facilities is meaningless. They impose identical obligations on both. All will be forced to allow homicide and suicide on their premises, or compelled to arrange for euthanasia or assisted suicide elsewhere.
Likewise, they recommend that objecting physicians be forced to actively enable homicide or suicide by providing referrals, arranging direct transfers or enlisting or arranging the enlistment of patients in a euthanasia/assisted suicide delivery system.

The Supreme Court did not rule that people ought to be compelled to become parties to homicide and suicide, but that is what the Experts recommend. This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them and a serious violation of human dignity.

Other countries make euthanasia and assisted suicide available without attacking fundamental freedoms. In this respect, the Experts’ claim to have produced “a uniquely Canadian approach to this important issue” is regrettably accurate. They fail to provide any evidence that the suppression of freedom of fundamental freedoms they propose can be demonstrably justified in a free and democratic society.


Table of Contents

I.    Background

I.1    Formation and work of the Advisory Group

II.    Overview of the Final Report

II.1    Moral/ethical unanimity
II.2    “Statement of Principles and Values”
II.3    Recommendations broadening the Carter criteria
II.4    Recommendations impacting freedom of conscience and religion

III.    The Experts’ “uniquely Canadian approach”

III.1     Expanded criteria and increasing likelihood of conflict

III.1.1    “Irremediable medical condition”.
III.1.3     Euthanasia approved for future suffering.
III.1.7     No waiting/reflection period.
III.1.10     Adolescents and children.
III.1.13     Euthanasia/assisted suicide by non-physicians.
III.1.15     Doctor shopping.
III.1.18     Physicians need not be present at suicides.
III.1.20     Euthanasia/assisted suicide wherever people live.
III.1.22     Families, caregivers may not be advised.

III.2    Institutions, associations, organizations

III.2.1     The meaning of institution.
III.2.3    All “institutions” must allow/arrange euthanasia/assisted suicide
III.2.6     All “institutions” must disclose policies.
III.2.8     “Institutions” may not manifest or enforce commitments

III.3    Objecting physicians: information, disclosure, non-discrimination

III.3.3    Objecting physicians must provide information.
III.3.8    Objecting physicians must disclose views and their implications.
III.3.11    Objecting physicians must not illicitly discriminate.

III.4    Objecting physicians must become critical enablers

III.4.4    Referral or direct transfer of care.
III.4.5    Referral to “system/third party.”
III.4.8    The Experts’ proposal and the CMA’s proposal.

IV.    Project response

IV.1    Expert recommendations broadening Carter criteria
IV.2    Expert recommendations and fundamental freedoms in general
IV.3    Expert recommendations and freedom of conscience

V.    Conclusion


Appendix “A”  Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix “B”  Expert recommendations re: broadening Carter criteria

B1.     Expanding the Carter criteria

B1.1    “Grievous and irremediable medical condition” includes mental illness
B1.2    Suffering not a prerequisite
B1.3    Competence not a prerequisite: euthanasia for dementia
B1.4    Euthanasia and assisted suicide for children and adolescents
B1.5    Assessment, euthanasia and assisted suicide by non-physicians

B2.    Increasing the impact of Carter

B2.3    Doctor shopping
B2.4    No “waiting/reflection” period
B2.5    Physicians need not be present at suicides
B2.6    Euthanasia & assisted suicide in hospitals, hospices, etc.
B2.7    Families and caregivers may not be advised

Appendix “C”    Expert recommendations re: freedom of conscience and religion

C1.    Institutions

C1.1    Meaning of “institution”
C1.2    “Institutions” must allow or arrange for euthanasia or assisted suicide
C1.3    All “institutions” must disclose position on euthanasia and assisted suicide
C1.4    “Institutions” must not require patients/residents to give up “the right to access,” interfere with employees providing eutanasia or assisted suicide elsewhere

C2.    Objecting physicians/health care providers

C2.1    Must provide information on “all options”
C2.2    Must disclose views on euthanasia and assisted suicide
C2.3    Must not discriminate
C2.4    Must act as critical enablers

C2.4.1  Three alternatives
C2.4.2  Referral
C2.4.3  Direct transfer of care
C2.4.4  Transfer to “a publicly-funded system” or “third party”
C2.4.5  The Experts’ “system/third party” and the CMA’s “central service”

Appendix “D”    Canadian Medical Association on euthanasia and assisted suicide

D1.    CMA policy: Euthanasia and Assisted Death (2014)
D2.    CMA Annual General Council, 2015

D2.1    Surveys on support for euthanasia/assisted suicide
D2.2    Physician freedom of conscience

D3.    CMA rejects “effective referral”

Appendix “E”    International comparisons

E1.    Netherlands
E2.    Luxembourg
E3.    Belgium
E4.    Oregon
E5.    Washington
E6.    Vermont
E7.    California

Appendix “F”    An Act to Safeguard Against Homicide and Suicide

 

Gagging conscience, violating humanity

Sean Murphy*

Introduction

In 2008, when the Council of the College of Physicians and Surgeons of Ontario was considering the final draft of an earlier policy, Physicians and the Human Rights Code, a member of the Council seems to have been troubled by the policy direction being given to the Colllege by the Ontario Human Rights Commission (OHRC).

Speaking during the Council meeting, 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

Now, however, to the applause of the OHRC,3 the College of Physicians and Surgeons of Ontario has approved a policy to gag the consciences of physicians in the province,4 and Saskatchewan is next in line.5  We may soon begin to discover the answers to Wiesel’s questions.

There is no duty to do what is believed to be wrong.

Policies like those adopted in Ontario and proposed in Saskatchewan are incoherent because they purport to include a duty to do what one believes to be wrong in a code of ethics or ethical guidelines, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing.

Beyond this, when discussion about difficulties associated with the exercise of freedom of conscience in health care is repeatedly characterized as “the problem of conscientious objection,”6 it becomes clear that the underlying premise is that people and institutions ought to do what they believe to be wrong, and that refusal to do what one believes to be wrong requires special justification.  This is exactly the opposite of what one would expect. Most people believe that we should not do what we believe to be wrong, and that refusing to do what we believe to be wrong is the norm. It is wrongdoing that needs special justification or excuse, not refusing to do wrong.

The inversion is troubling, since “a duty to do what is wrong” is being advanced by those who support the “war on terror.” They argue that there is, indeed, a duty to do what is wrong, and that this includes a duty to kill non-combatants and to torture terrorist suspects.7 The claim is sharply contested,8 but it does indicate how far a duty to do what is wrong might be pushed. In Quebec, in Ontario and in Saskatchewan it is now being pushed as far as requiring physicians to participate in killing patients, even if they believe it is wrong: even if they believe that it is homicide.9

This reminder is a warning that the community must be protected against the temptation to give credence to the dangerous idea that is now being advanced by medical regulators in Canada: 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.

Forcing someone to do wrong is a violation of humanity, not a limitation of freedom.

Attempts to suppress freedom of conscience and religion in the medical profession are often defended using a statement of the Supreme Court of Canada: “the freedom to hold beliefs is broader than the freedom to act on them.”10

Click here to access Journal.
Click here to access Journal.

The statement is not wrong, but it is inadequate. It is simply not responsive to many of the questions about the exercise of freedom of conscience that arise in a society characterized by a plurality of moral and political viewpoints and conflicting demands. More refined distinctions are required. One of them is the distinction between perfective and preservative freedom of conscience, which reflects the two ways in which freedom of conscience is exercised: by pursuing apparent goods and avoiding apparent evils.11

It is generally agreed that the state may limit the exercise of perfective freedom of conscience if it is objectively harmful, or if the limitation serves the common good. Although there may be disagreement about how to apply these principles, and restrictions may go too far, no polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected.

If the state can legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong. There is a significant difference between preventing someone from doing the good that he wishes to do and forcing him to do the evil that he abhors.

We have noted the danger inherent in the notion of a “duty to do what is wrong.” Here we add that, as a general rule, it is fundamentally unjust and offensive to suppress preservative freedom of conscience by forcing people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that no limit can ever be placed on preservative freedom of conscience. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

None of these conditions have been met in Ontario or in Saskatchewan.

[PDF Text]


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.  Letter from the Office of the Chief Commissioner, Ontario Human Rights Commission, to the College of Physicians and Surgeons of Ontario, dated 19 February, 2015, Re CPSO Draft Policy: Professional Obligations and Human Rights

4.  College of Physicians and Surgeons of Ontario, Policy #2-15: Professional Obligations and Human Rights (Updated March, 2015) (Accessed 2015-03-16)

5.  College of Physicians and Surgeons of Saskatchewan, Policy: Conscientious Refusal.

6.  For example, Cannold L. “The questionable ethics of unregulated conscientious refusal.”  ABC Religion and Ethics, 25 March, 2011. (Accessed 2013-08-11)

7.  Gardner J. “Complicity and Causality,” 1 Crim. Law & Phil. 127, 129 (2007). Cited in Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.” New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

8.  Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.” New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

9.  Quebec has already passed a law purporting to legalize euthanasia: Murphy S. “Redefining the Practice of Medicine- Euthanasia in Quebec, Part 9: Codes of Ethics and Killing.” Protection of Conscience Project, July, 2014.  The Supreme Court of Canada has ordered legalization of physician assisted suicide and physician administered euthanasia.  When the ruling takes effect in early 2016, the Ontario and Saskatchewan policies, as written, will have the effect of forcing physicians unwilling to kill patients or help them kill themselves to find a colleague willing to do so.

10.  Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 (Accessed 2014-07-29)

11.  This section of the paper draws from an extended discussion of the subject in Murphy S, Geunis S.J. “Freedom of Conscience in Health Care: Distinctions and Limits.” J Bioeth Inq. 2013 Oct; 10(3): 347-54

Doctors who refuse to provide services on moral grounds could face discipline under new Ontario policy

National Post

Sharon Kirkey

Doctors who refuse to prescribe birth control or other medical services because of their personal values could face possible disciplinary actions, Canada’s largest medical regulator says.

Moral or religious convictions of a doctor cannot impede a patient’s access to care, the College of Physicians and Surgeons of Ontario said Friday in a 21-3 vote supporting an updated Professional and Human Rights policy.

The policy makes clear: “You cannot kick someone out of your office without care,” said Dr. Marc Gabel, past president of the college and chairman of the policy’s working group.

Some council members said the new code, which the college expects physicians to comply with or face complaints of professional misconduct, could lead to “state-run” medicine, while others said the church has no place in a doctor’s office. . . [Full text]

Doctors who oppose abortion should leave family medicine: Ontario College of Physicians

LifeSite News

Steve Weatherbe

Family doctors who object to referring patients for abortions should think about switching specialties, the man overseeing the Ontario College of Physicians and Surgeons’ revision of its ethics policy said this week.

Dr. Marc Gabel, a Toronto psychotherapist and past president of the college, told LifeSiteNews on Thursday that if his committee’s proposed revision of the college’s “Professional Obligations and Human Rights” is adopted, then if doctors refuse to refer patients to abortionists, or to doctors willing to prescribe contraceptives, they could face disciplinary action.

“If there were a complaint, every complaint is investigated by the complaint committee,” Dr. Gabel said. The complaint committee could deliver a mild private rebuke or turn over the matter to the disciplinary committee, which Gabel chaired for several years.

According to Dr. Carol Leet, the new president of the college, a doctor found guilty of professional misconduct by the disciplinary committee could face anything from remedial instruction to loss of his or her medical licence. . . [Full text]

 

Catholics doctors who reject abortion told to get out of family medicine

The Catholic Register

Michael Swan

Catholic doctors who won’t perform abortions or provide abortion referrals should leave family medicine, says an official of the College of Physicians and Surgeons of Ontario.

“It may well be that you would have to think about whether you can practice family medicine as it is defined in Canada and in most of the Western countries,” said Dr. Marc Gabel, chair of the college’s policy working group reviewing “Professional Obligations and Human Rights.”

The Ontario doctor’s organization released a draft policy Dec. 11 that would require all doctors to provide referrals for abortions, morning-after pills and contraception. The revised policy is in response to evolving obligations under the Ontario Human Rights Code, Gabel said.

There have been no Ontario Human Rights Tribunal decisions against doctors for failing to refer for abortion or contraception.

Gabel said there’s plenty of room for conscientious Catholics in various medical specialties, but a moral objection to abortion and contraception will put family doctors on the wrong side of human rights legislation and current professional practice. . . [Full text]

 

‘Frightening’: Life and family leaders react to Ontario College of Physicians’ draft policy

LifeSite News

Pete Balinski

Numerous life-and-family groups have slammed a draft policy from Ontario’s College of Physicians and Surgeons that threatens to force doctors into providing abortions and contraceptives in some circumstances, calling it “inimical to living in a free society” and “frightening.”

“We can say goodbye to a slew of good doctors in Ontario [if the policy passes],” Andrea Mrozek, executive director of Institute of Marriage and Family Canada, told LifeSiteNews. “If I were one, with a young family, I’d leave. Who wants to live under the threat of constant legal action for doing what you believe is good care?”

The College Council approved the draft policy last week. The policy would force doctors who are “unwilling to provide certain elements of care due to their moral or religious beliefs” — such as abortion — to refer the patient “in good faith” to another doctor who would provide the service.

If there is nobody to whom the patient can be referred, then the doctor “must provide care that is urgent or otherwise necessary to prevent imminent harm, suffering, and/or deterioration, even where that care conflicts with their religious or moral beliefs.”

“Although physicians have [freedom of conscience and religion] under the Charter, the Supreme Court of Canada has determined that no rights are absolute,” the draft policy states, adding that the “right to freedom of conscience and religion can be limited.”

The College’s former president, Marc Gabel, has stated that doctors who fail to comply will face disciplinary action. . . [Full text]

Freedom of conscience for Ontario physicians a prominent concern

Sean Murphy*

The College of Physicians and Surgeons of Ontario, the state regulator of the practice of medicine in the province, is reviewing its policy on freedom of conscience for physicians (Physicians and the Ontario Human Rights Code).  A first phase of public consultation ended 5 August, 2014 and attracted almost 1,800 responses in a discussion forum, most supportive of freedom of conscience [CMAJ].

The straw poll on the consultation page asked the question, “Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physician’s religious or moral beliefs?”  The results of the survey (the accuracy of which seems uncertain) showed that, of 32,912 respondents, 25,230 (77%) answered “Yes”, 7,616 (23%) answered “No” and 66 were undecided.

The Ontario Human Rights Commission unsuccessfully attempted to suppress freedom of conscience in the medical profession in Ontario in 2008.  In its 2014 submission to the College, the Protection of Conscience Project stated:

The Ontario Human Rights Commission made a serious error in 2008 when it attempted to suppress freedom of conscience and religion in the medical profession on the grounds that physicians are “providers of secular public services.” In its public perpetuation of this error, the Commission has contributed significantly to anti-religious sentiments and a climate of religious intolerance in Ontario. Both were on display earlier this year when it became front page news and a public scandal that three physicians had told their patients that they would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful.

Controversy over doctors’ right to say “no”

The most controversial issues relate to abortion referrals or prescribing birth control.

CMAJ September 16, 2014 186:E483-E484; published ahead of print August 18, 2014

Wendy Glauser

Religious groups, doctor’s organizations, ethicists and abortion rights advocates are raising concerns around the review of an Ontario policy that outlines, among other things, physicians’ right to object to patients’ requests for services on moral grounds.

The College of Physicians and Surgeons of Ontario’s Physicians and Ontario Human Rights Code is up for its five-year review, with both public and expert opinion being sought.

On one side of the spectrum, faith groups and especially Catholic organizations are asking that the current policy  –  which allows physicians to opt out of non-emergency services they conscientiously object to  –  shouldn’t be amended.

While the policy covers any potential objection, the ones most discussed in the media have been related to abortion referrals or prescribing of birth control. [Full text]

Submission to the College of Physicians and Surgeons of Ontario

Freedom of Professional Judgment

Canadian Physicians for Life

I would like to thank the CPSO for inviting comment about its Policy Statement #5-08, “Physicians and the Ontario Human Rights Code.”

The CPSO policy is fair and should not change.

Some, and I would hope most,  Canadian physicians wish to practice as professionals in a free country,  and to use their hard-won medical wisdom in the service only of the patient who presents with the unique circumstances of an individual life. This excludes treating the patient as a means to an end, political or otherwise, but rather the doctor’s judgment should be fearlessly focused on the physical and mental integrity of the patient.

In recent years various activists have attempted to impugn certain medical decisions in controversial situations, notably requests for abortion or for  potentially abortifacient drugs.  The activists wish to portray their ideological opponents as driven by purely private (usually religious) prejudices which have no place in medical practice.

The CPSO  should decline to be used by such activists as an instrument to suppress their critics, for in reality that is all that is going on with demands that physicians be forced to refer for, or perform, certain acts.

If a physician has come to the conclusion that induced abortion would be bad for a certain patient and fatal for her child, the CPSO is in a good position to recognize this opinion  as resulting from the healthy application of medical judgment.  Some activists wish to malign such decisions  by casting them  as  creatures  of a whimsical  “conscience” as opposed to an obedience to  “professionalism.”

These activists have a debased understanding of  both concepts.  The free application of a  good conscience directs  the doctor to offer selfless professional judgment to each human being he or she has the honour to advise and treat.

The concept of “conscience” should never be used to cloak an agenda hidden from the patient, and the concept of “professionalism” should never be turned on its head to subjugate professional judgment to a political ideology or to persecute those who show  ethical courage.

I wish the CPSO endurance in resisting the erosion of its members’  freedom to do the right thing for their patients.

Yours cordially,

Will Johnston MD
President, Canadian Physicians for Life
495 West 40th Ave.
Vancouver BC V5Y 2R5

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