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Protection of Conscience Project

Service, not Servitude
Project Submissions

Submission to the College of Physicians and Surgeons of Alberta

Re: CPSA Draft Standards of Practice

8 October, 2008
Table of Contents
I. Introduction
II. Draft Standards in focus
III. The issue
IV. Background
V. Responding to the issue
VI. The new 'rights' language
VII. Belief: religious and otherwise
VIII. Establishment consensus and the ethics of the profession
IX. Social contract
X. Social contract and socialized medicine
XI. Fiduciary duty
XII. "Negligence close to abandonment"
XIII. Legality
XIV. Balance
XV. Limits to expression
XVI. The problem of complicity
XVII. The needs of the patient: anthropology counts
XVIII. The human person
IXX. Concluding summary
XX. Looking to the future
Appendix "A": Conscientious Objection as a Crime Against Humanity
Related documents


The primary issue raised by the Draft Standards is whether or not a physician should be compelled to provide or facilitate a service or procedure he believes to be wrong. Put another way, does a physician's refusal to provide or facilitate something he believes to be wrong constitute professional misconduct?

A number of suggested responses to the issue are inadequate.

Despite the fact that a 'right' to abortion cannot be found in existing international instruments, current rights claims are meant to force health care workers and institutions to provide or at least facilitate abortion, contraception, and artificial reproduction. The polemics and tendentious reasoning involved in this project are disturbing. However, even if claims of 'rights' to abortion or contraception can be grounded in rights purportedly implicit in international instruments, it does not follow that they override the repeated explicit international recognition and support for freedom of conscience and religion.

It is not reasonable to address the issue by proscribing the public manifestation of religious belief. All beliefs influence public behaviour. Some of these beliefs are religious, some not, but all are beliefs. Disputes about morality are always, at the core, disputes between people of different beliefs, whether or not those beliefs are religious. The failure to acknowledge the faith-assumptions implicit in one's own position frequently leads to intolerance for opposing views, and it always makes sincere, respectful and progressive public discourse difficult.

To insist that physicians conform to a dominant 'consensus' is unacceptable, since such agreements are 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.

To identify beliefs as 'private' or 'personal' does not help to resolve a question about the exercise of freedom of conscience. Disputes about what counts as 'private' or 'public' thus end in a stalemate.

Theories of 'contract' and 'convenant' are inadequate and can be oppressive when used as a basis for limiting freedom of conscience among health care workers. Even if one posits the existence of a 'contract' through the implementation of public health care, the suppression of freedom of conscience among health care workers was not, in fact, one of the elements in the agreement. Further: when abortion was legalized, repeated assurances were given that health care workers would not be forced to participate in the procedure. Finally, if physicians can be considered state employees, they are entitled to the same accommodation of freedom of conscience and religion to the point of undue hardship.

It is said that the fiduciary nature of the physician-patient relationship requires suppression of a physician's freedom of conscience, but this is oversimplified. The relationship is 'fiduciary' for some purposes, but not for others. 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, nor do physicians have such a duty.

The claim that a principled refusal to refer amounts to abandonment is not tenable. One can argue that a physician who urgently recommends a procedure to a patient has a duty to do all that he reasonably can to help the patient obtain it, and that the failure to do so might constitute negligence or abandonment. However, the same cannot be said if a physician, for reasons of conscience, refuses to recommend a procedure at all.

The fact that a procedure is legal does not impose a duty on physicians or on the profession to provide it. This is illustrated by official support for refusal to facilitate sex-selective abortion, official prohibition of physician participation in legal executions, and in the fact that surgeons are not required to amputate healthy limbs on demand.

It is not possible to balance a desire for a procedure against a physician's desire to avoid complicity in wrongdoing and live and work according to his conscientious convictions because the desires concern fundamentally different goods that are not commensurable. It may be possible to accommodate both, but the desires cannot be 'balanced.'

The statement that mandatory referral can be justified as a kind of limit to freedom would compel physicians to serve ends chosen by someone else even if he finds them abhorrent. This is a form of servitude, not service.

It is reasonable to hold that the kind of action involved in referral is the same kind of action that is defined as "participation" in professional policies prohibiting physician participation in executions and torture. The model provided by these policies 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. This conclusion is supported by the Draft Standards themselves and by advice given by the Canadian Medical Protective Association.

When people cannot achieve a consensus about the morality of a procedure or about freedom of conscience for health care workers, it is frequently because they are operating from different beliefs about the nature of the human person. The failure to engage at this level will probably frustrate more superficial efforts to resolve disagreements.

A long philosophical tradition, stretching from at least Immanuel Kant to R. vs. Morgentaler and beyond, insists that the nature of the human person is such no one should be exploited by another by being reduced to the status of a tool or thing: that it is reprehensible to use a human person for ends chosen by others. Within this tradition, self-sacrifice, 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.

In the tradition of Kant, C.S. Lewis, Martin Luther King, Cyril Joad and Karol Wojtyla, and following Madame Justice Wilson in R. vs. Morgentaler, 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."  The Draft Standards [Parts 5(4), 6(1), 6(2), 7(2)a, 8(1) and 32(2)d] should be revised to ensure that the document cannot be used for this purpose.

I. Introduction

I.1. The Draft Standards of Practice were published the day that news broke about a draft College of Physicians and Surgeons of Ontario policy, Physicians and the Human Rights Code. In the course of the ensuing controversy it became clear that the principal threat to freedom of conscience and religion for physicians emanates from human rights commissions rather than from Colleges of Physicians. Nonetheless, Standards of Practice being considered by the College of Physicians and Surgeons of Alberta warrant careful scrutiny in view of the news from Ontario and developments in Alberta and elsewhere.

I.2. This submission addresses only those parts of the Draft Standards that could be applied to restrict or suppress the exercise of freedom of conscience of physicians in Alberta.

II.  Draft Standards in focus

Establishing and terminating physician-patient relationships

II.1   Dealing first with lesser issues, a physician is entitled to restrict the scope of his practice to exclude provision or facilitation of procedures or services he believes to be wrong. This may be relevant to patient selection. It should be made clear that a physician may refuse to accept a patient when it can be reasonably foreseen that an irreconcilable conflict will arise as a result of patient expectations or demands that would compromise the moral integrity of the physician. [Ref. Part 6(1)] Physicians who decline to accept a patient in such circumstances are not discriminating against the patient on prohibited grounds. Their concern is to avoid direct or indirect complicity in wrongdoing and undesirable conflict with patients, not with the personal characteristics or status of a patient. [Ref. Part 6(2]

II.2   If an irreconcilable conflict arises as a result of patient expectations or demands that would compromise the moral integrity of the physician, it is in the best interests of both physician and patient that the patient's care be transferred to another physician. Again, physicians who discharge of a patient in such circumstances are not discriminating against the patient on prohibited grounds. Their concern is to avoid direct or indirect complicity in wrongdoing, not with the personal characteristics or status of a patient. [Ref. Part 7(2)a]


II.3   While a patient's reasonable request for a referral should normally be honoured, it is not reasonable to demand a referral to other health care professionals for procedures or services the physician believes to be wrong. A physician's refusal to do so should not be considered a breach of the Standards. [Ref. Part 5(4)]

Termination of pregnancy and birth control

II.4   In order to preserve the right of patients to make informed decisions, physicians who believe that termination of pregnancy or some forms of birth control are not an appropriate or wise medical choice generally do not object to providing information about the procedures or methods. These physicians, however, retain the freedom to express the rationale for their reservations without exerting any emotional manipulation so that the patient clearly understands why the physician is providing the specific advice, and understands that the advice is not based on an attitude of intolerance, disrespect or paternalism towards the patient.

II.5   However, the requirement that a physician "ensure that the patient. . . is offered access to available medical options" is likely to be interpreted to impose a duty to refer for or otherwise facilitate procedures or services the physician believes to be wrong. Many objecting physicians would find this unacceptable. [Ref. Part 8(1)]

Duty to report a colleague

II.6   The Draft Standards include a duty to report colleagues for conduct that "could place patients at risk or could generally be considered unprofessional conduct." Among the examples of unprofessional conduct is that of a physician who "repeatedly or consistently behaves in a manner that interferes with the delivery of care to patients or the ability of other physicians or health care professionals to provide care to patients."

II.7   In view of the ongoing controversy over the exercise of fundamental freedoms of conscience and religion by physicians, the Draft Standards should make clear that this Part does not require or justify reporting a colleague who restricts the scope of his practice to exclude provision or facilitation of procedures or services he believes to be wrong. [Ref. Part 32(2)d]

II.8   The key problem that arises in each of the draft provisions noted above is an apparent expectation that a physician facilitate something he believes to be wrong, either by providing the procedure or service directly, or by referring or otherwise assisting a patient to obtain it.

III.  The issue

III.1   The primary issue raised by the Draft Standards is whether or not a physician should be compelled to provide or facilitate a service or procedure he believes to be wrong. Put another way, does a physician's refusal to provide or facilitate something he believes to be wrong constitute professional misconduct?

III.2   The potentially problematic provisions of the CPSA Draft Standards noted in Part II are a particular cause for concern, not only because of recent developments in Ontario, but because they have been preceded by repeated efforts to compel health care workers to directly or indirectly participate in abortion. It is instructive to review this background before responding to the issue.

IV. Background


IV.1   While nurses in Alberta and elsewhere have been forced to participate directly in abortions,1 direct participation of physicians in the procedure has not yet been required. However, since at least 1999, there have been repeated attempts to force physicians to facilitate the procedure through referral.

IV.2   In September, 1999, Dr. E. Kretzul, a Councillor of the College, published a note in The Messenger in which he claimed that referral was an ethical obligation:

The College sometimes hears about physicians who are not supportive of patients requesting information or a referral regarding termination of pregnancy. In fact, individuals have informed the College that some physicians are rude and bullying to patients. . . In those circumstances where our personal morality would influence our ability to help our patient, we should refer the patient appropriately and provide all the necessary information and opportunities available.2

IV.3   The column drew a sharp retort from the President of Canadian Physicians for Life:

. . .if abortion seekers have complained of being bullied, has the College conducted diligent enquiries into such serious accusations? What was the outcome? Or is polemical hearsay the College's new standard of evidence when the target is pro-life doctors?

In plain English, independent medical professionals have no duty to refer anyone to anyone when the referral would violate the conscience and the medical good judgement of the professional. This elementary conscience protection impartially shields doctors who possess any convictions on any topic at all.3

IV.4   The Assistant Registrar of the College later admitted that complaints about physician 'moralizing' were largely hearsay "from groups who provide birth control and family planning counselling to women." First-hand accounts from individual patients were a "distinct minority" of the total.4

IV.5   In 2001, Planned Parenthood Alberta - coincidentally, perhaps, one of those "groups who provide birth control and family planning counselling to women" - claimed that "doctors ethically must make referrals for abortion services, whether they morally support that or not."5 Again, the statement was rejected by Canadian Physicians for Life:

Our correspondence with Alberta College of Physicians and Surgeons registrar, Dr. Ohlhauser, states clearly that physicians do not have a professional obligation to refer a patient for an abortion. The College requires, as does the Code of Ethics of the Canadian Medical Association, that physicians "inform a patient when their personal morality would influence the recommendation or practice of any medical procedure that the patient needs or wants."6

IV.6   Planned Parenthood Alberta returned to the issue again in 2004.

Guidelines from the Alberta College of Physicians and Surgeons require all doctors to provide women with information "on all options for their pregnancies including termination (abortion)" or they must refer them to another appropriate doctor or clinic. . .7

IV.7   Note that the previous demand for referral for the procedure had evolved into a demand for referral for the purpose of providing a patient with "information." The Project Administrator questioned the Assistant Registrar of the College about the meaning of this guideline:

It appears the College expects the communication of a diagnosis of pregnancy to be managed in the same way the physician would communicate a diagnosis of disease: by volunteering information about 'treatments' available. If I understand your policy correctly, a physician must tell a pregnant woman that she can have an abortion or put the child up for adoption, whether or not the woman has indicated an interest in either.. . .am I correct in believing that the College requires that physicians present abortion, adoption and carrying to term as morally equivalent options? If so, it would seem to follow that the College expects a physician who is unwilling to present them as moral equivalents to 'refer' to another physician who will do so. 8

IV.8   The Assistance Registrar's answer:

Those women who plan to carry to term but not keep the child, and those seeking abortion are generally clear in expressing their choices.

Without getting into the issue of "moral equivalence" it is not our expectation that physicians will suggest to all newly pregnant women their various options including abortion and adoption.9

IV.9   The Administrator advised the Assistant Registrar that this approach did not seem objectionable from the perspective of freedom of conscience, and correspondence came to an end.

IV.10   The 2004 missive from Planned Parenthood opened with the following generalized smear:

There are doctors and radiologists in almost every community in Alberta who do not support a woman's right to reproductive choice. They may try to delay you from seeking appropriate services or they may scare you with misinformation about the dangers of abortion or they may impose their moral beliefs about abortion. . .10

IV.11   This kind of accusation can be unfairly made against conscientious objectors to abortion who, following guidelines from the Canadian Medical Association (CMA) and College of Physicians and Surgeons of Alberta (CPSA) inform their patients about their moral or ethical views so that the patient can seek another physician, and provide information relevant to making an informed choice about treatment options.

IV.12   In following these guidelines an objecting physician must, at all times, be respectful of the patient's dignity, and must not be threatening, overbearing or abuse his authority by preaching or moralizing in order to influence his patient's decision. On the other hand, objecting physicians can hardly be expected to present morally controversial procedures as morally uncontroversial, or in such a way as to indicate that they approve of them or are indifferent to them (i.e., to adopt a 'neutral' position). Moreover, the information they reasonably believe necessary to permit the patient to make a truly "informed decision" may be more comprehensive or in other respects different from what Planned Parenthood is accustomed to provide its clients.

IV.13   A third party hearing of this kind of exchange at second-hand, especially someone "from groups who provide birth control and family planning counselling to women," might well stigmatize the discussion as 'moralizing' and providing 'misinformation'. Partisan polemics of this sort do not provide a basis for sound policy making.


IV.14   In late October, 2004, a student at the University of Ottawa reported that the former Dean of the Faculty of Law, Sanda Rodgers, told a group of second year students that a physician is required by law to refer patients for abortion, even if the physician objects to the procedure for reasons of conscience. The Project Administrator wrote to the Dean of the Faculty of Medicine at the University to express concern that students may have been misled.11  The Dean responded to the effect that Professor Rodgers cited both the CMA position on induced abortion and the CMA Code of Ethics, neither of which require referral for abortion. "I have no reservations in concluding that Professor Rodgers has maintained equipoise in presenting this material," he wrote, "and that no students, as you suggest, were misled."12

IV.15   However, in July, 2006, Rodgers co-authored a controversial guest editorial in the Canadian Medical Association Journal in which the authors asserted that refusal to refer for abortion constituted malpractice and could lead to "lawsuits and disciplinary proceedings."13  This was apparently the same message said to have been delivered by Professor Rodgers to the students in 2004. The co-author was Jocelyn Downie of the Health Law Institute, Dalhousie University, Halifax, an advisor to the interim editorial board of the CMAJ.14

IV.16   The position taken in the editorial was rejected by a number of correspondents, including the Canadian Medical Association.15  Nonetheless, Rodgers and Downie continued to assert that the CMA Policy on Induced Abortion "does not allow a right of conscientious objection in relation to referrals."16 Their insistence on the significance of their interpretation of CMA policies is remarkable in view of a previous statement by Downie: "An individual's conscience must always inform his or her action even in the presence of a professional code, standards or guidelines."17

IV.17   Other Canadian law professors, notably Rebecca J. Cook and Bernard M. Dickens, have also claimed that objecting physicians must refer patients for procedures or services they believe to be wrong. Writing in 2003 in the Journal of Obstetrics and Gynaecology Canada they stated: "Physicians who feel entitled to subordinate their patient's desire for well-being to the service of their own personal morality or conscience should not practise clinical medicine" (Emphasis added).18 They cited an Alberta case in support of their claim that a failure to refer is negligence close to abandonment.19 The case is also cited by Dickens in a standard Canadian text on health law.20 

IV.18   The assertion that a patient's desire should be an ordering principle in the practice of medicine has little to recommend it. More important, the arguments of Professors Cook and Dickens for mandatory referral were unsupported and even contradicted by their own legal and ethical references. Regulatory officials with the power to enforce the views of Cook and Dickens will not discover this in the pages of the Journal, since, by editorial fiat, the discussion was terminated with the publication of their 'final word' on the subject.21

V. Responding to the issue

V.1   A number of claims are commonly made to support the view that physicians should be forced to provide or facilitate services even if they are contrary to their conscientious convictions. Responses to these claims are provided in Parts VI to XV.

V.2   A physician who refuses to facilitate what he believes to be wrong is motivated by a desire to avoid complicity in wrongdoing. Part XVI addresses this problem and demonstrates that physicians who refuse to refer for abortion, birth control or other morally controversial procedures are, in this respect, acting no differently than colleagues and professional medical organizations.

V.3   Part XVII points out that beliefs about the nature of the human person lie at the root of any attempt to set limits to freedom of conscience. It is necessary to engage at this level in order to develop an adequate response to the issue. With this in mind, Part XVIII offers a description of the human person that is relevant to the present discussion.

. . . Part VI


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