Submission to the College of Physicians and Surgeons of Alberta
Re: CPSA Draft Standards of Practice
8 October, 2008
Full Text
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]
Referral
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
Alberta
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.
Canada
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.15Nonetheless,
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.
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