Submission to the College of Physicians and Surgeons of Ablerta Re: Draft Standards of Practice

Submission to the College of Physicians and Surgeons of Alberta

Re: CPSA Draft Standards of Practice

Full Text

XVI. THE PROBLEM OF COMPLICITY

XVI.1 It appears that most people are willing to grant that a health care worker who has serious moral objections to a procedure should not be compelled to perform it or assist directly with it. However, many people find it more difficult to understand why some health care workers object to even indirect forms of involvement: why some, for example, refuse to refer patients for some morally controversial procedures.

XVI.2 According to the ACOG Committee on Ethics, "the logic of conscience, as a form of self-reflection on and judgement about whether one's own acts are obligatory or prohibited, means that it would be odd or absurd to say, "I would have a guilty conscience if she did X."96 It thus appears that the ACOG Committee is working from what might be called the 'Absolutionist Premise:' that someone who merely arranges for an act is absolved of moral responsibility because only someone who actually does an act is morally responsible for it.

XVI.3 Alternatively, the ACOG may admit that some moral responsibility is incurred by referral or by otherwise facilitating a procedure, but that the degree of responsibility is sufficiently diminished in such cases that it is of no real significance. Call this the 'Dismissive Premise.'

XVI.4 In passing, it should be noted that, on either account, the position of the Committee raises the issues discussed in Parts VII and VIII. Whether they assert that referral or facilitation do not incur moral responsibility, or that the degree of moral responsibility incurred is so minimal as to be inconsequential, they are making a moral judgement and demanding that others adhere to it.

Complicity in torture

XVI.5 The Absolutionist Premise is illustrated by the opinion of Newsweek columnist Jonathan Alter. In the weeks following the terrorist attacks on the United States in September, 2001, Alter argued that it was time to think about torturing terrorist suspects who might have information about plans for such horrendous crimes. He acknowledged that physical torture was "contrary to American values," but argued that torture is appropriate in some circumstances, and proposed a novel 'compromise:' that the United States turn terrorist suspects who won't talk over to "less squeamish allies,"97 a practice known as "extraordinary rendition." The allies would then do what Americans would not, without compromising American values.

XVI.6 Less than a year later, Canadian citizen Maher Arar, returning home from Zurich through New York, was detained, interrogated and "rendered" to Syria by U.S. authorities.98 In Syria he was imprisoned for almost a year, "interrogated, tortured and held in degrading and inhumane conditions."99

XVI.7 A subsequent "comprehensive and thorough" investigation "did not turn up any evidence that he had committed any criminal offence" and disclosed "no evidence" that he was a threat to Canadian security."100 A commission of inquiry was appointed to investigate "the actions of Canadian officials" in the case.101

XVI.8 What was of concern to Mr. Arar, the public and the government was whether or not Canadian officials had caused or contributed to what happened to Mr. Arar, even though his deportation to Syria was effected by the United States, and Syrian officials imprisoned and tortured him. The key issue was whether or not Canada was complicit in torture.

XVI.9 Concern about Canadian complicity surfaces repeatedly in the report of the commission of inquiry: in briefing notes to the Commissioner of the RCMP,102 in the testimony of the Canadian Ambassador to Syria,103 in references to the possibility of RCMP complicity in his deportation,104 about the perception of complicity if CSIS agents met Mr. Arar in Syria,105 in the suggestion that evidence of complicity could show "a pattern of misconduct,"106 and in the conclusions and recommendations of the report itself.107

XVI.10 The issue of complicity arose again in 2007 when a report in Toronto's Globe and Mail alleged that prisoners taken in Afghanistan by Canadian troops and turned over to Afghan authorities were being mistreated and tortured.108 "Canada is hardly in a position to claim it did not know what was going on," said the Globe. "At best, it tried not to know; at worst, it knew and said nothing."109 On this view, one can be complicit in wrongdoing not only by acting, but by failing to act, and even by silence. The Globe editorial brings to mind the words of Martin Luther King and Mahatma Gandhi.110

XVI.11 Thus far, government officials. But the problem of complicity does not relate only to government officials. The Lancet, among others, has asked, "How complicit are doctors in the abuse of detainees?"111 and other journal articles have explored the answer with some anxiety.112

XVI.12 The Arar Inquiry, the concerns raised by the Globe and Mail story about Afghan detainees and the alarm raised about physician complicity in torture make sense only on the presumption that one can be morally responsible for acts actually committed by another person. The Absolutionist Premise does not provide a plausible starting point for moral reasoning.

Complicity in capital punishment

XVI.13 The Dismissive Premise is more promising. Granted that one can be morally responsible for acts actually committed by another, there may be differences of opinion about what kind of action or omission incurs such responsibility. These differences need not be thoroughly canvassed in this paper. It is sufficient to ask if the kind of action involved in referral can have that effect. That is: if a physician refers or otherwise helps a patient to obtain what be believes to be an immoral procedure, is he a culpable participant in the provision of the procedure?

XVI.14 The issue of culpable participation in a morally controversial procedure has been considered by the American Medical Association in its policy on capital punishment.113 It 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.

XVI.15 Among the actions identified by the AMA as "participation" in executions are the prescription or administration of 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.

XVI.16 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.

XVI.17 The AMA also prohibits physician participation in torture. Participation is defined to include, but is not limited to, "providing or withholding any services, substances, or knowledge to facilitate the practice of torture."114 The Canadian Medical Association, while not faced with the problem of capital punishment, has voiced its opposition to physician involvement in the punishment or torture of prisoners. The CMA states that physicians "should refuse to allow their professional or research skills to be used in any way" for such purposes.115

Complicity and referral

XVI.18 While referral is not mentioned in the AMA policy on capital punishment, nor in the Canadian or American policies on torture, one cannot imagine that either the AMA or CMA would agree that physicians who refuse to participate in torture or executions have the duty to refer the state "in a timely manner" to other practitioners.116 In fact, it is likely that both the CMA and AMA would censure a physician who did so voluntarily, on the grounds that such conduct would make him complicit in a gravely immoral act.

XVI.19 In any case, 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 the AMA policies on capital punishment and torture. The model provided by the AMA policy 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.

XVI.20 The point here, of course, is not that capital punishment or torture are morally equivalent to artificial reproduction, contraception or other controversial medical procedures. The point is that, when professional associations are convinced that an act is seriously wrong - even if it is legal - one finds them willing to refuse all forms of direct and indirect participation in order to avoid moral complicity in the act. This is precisely the position taken by conscientious objectors in health care.

Draft Standards and complicity

XVI.21 The Draft Standards themselves support the view that moral responsibility is incurred by referral.

XVI.22 The definition of the "practice of medicine" includes, not only direct care, counsel, diagnosis and treatment, but referral. [Ref. Part 20(1)a] It would thus be inconsistent to claim that direct involvement with the patient incurs the moral responsibility attached to medical practice, but referral does not.

CMPA: referrals and complicity

XVI.23 In 2002 the College notified practitioners that it was the opinion of the Canadian Medical Protective Association (CMPA) that referral to non-regulated health care providers exposed physicians to civil liability "if medical problems arise during, or as a result of services provided by a non-regulated health care provider."

XVI.24 The CMPA recommended that physicians "avoid all actions that could be construed as a patient referral to a non-regulated health care provider" - especially written referrals - and that physicians make clear to patients that it is their responsibility "to make all arrangements with the non-regulated health care provider." Further:If the patient requires something in writing. . . the note should clearly indicate . . . that the physician, though not objecting, is neither referring nor recommending the patient for the treatment.117

XVI.25 The opinion of the CMPA was clearly based upon the premise that referral makes a physician complicit in what follows. The CMPA recommendations exactly parallel the position taken by physicians who refuse to refer patients for procedures or services the physicians believe to be wrong.

Complicity and dirty hands

XVI.27 A jaded few will respond that reports of scandal will always sell newspapers, that scandal always energizes the self-righteous (both the religious and the politically-correct varieties) and that scandal is one of the traditional weapons used against opponents by politicians of all stripes. There is some truth to this, but, going deeper into it, why is complicity in wrongdoing scandalous?

XVI.28 The answer must be that there is something about complicity in wrongdoing that triggers an almost instinctive reaction in people, something about it that touches some peculiar, deep and almost universal sense of abhorrence. One says "almost" instinctive and "almost" universal because, of course, there have always been exceptions: Eichmanns, Pol Pots, Rwandan machete men, for example. And the degree of sensitivity varies from person to person, from subject to subject, and from one culture to another. Nonetheless, complicity in wrongdoing can be a source of scandal, a political weapon and the subject for public inquiries only because it has some real and profound significance.

XVI.29 The nature of that significance is suggested by a number of expressions: "poisoned" fruit doctrine, "tainted"evidence, money that has to be "laundered," and "dirty" hands. A senior Iraqi surgeon, commenting on the complicity of physicians in torture under Saddam Hussein, said that "the state wanted them to have 'dirty hands'."118 In contrast, some writers refer approvingly to a "dirty hands principle":

Philosopher Sidney Axinn tells us the Dirty Hands principle "holds that in order to govern an institution one must sometimes do things that are immoral." He goes on to say that advocates would claim that "we do not want leaders who are so concerned with their own personal morality that they will not do `what is necessary' to ... win the battle.... We have an inept leader if we have a person who is so morally fastidious that he or she will not break the law when that is the only way to success" (Axinn, 1989: 138).119

But whichever view one takes of "dirty hands," all of these expressions convey an uncomfortable sense that something is felt to be soiled by complicity in wrongdoing. What is that something? And what is the nature of that cloying grime?

XVI.30 The answer suggested by the Project is that the "something" is not a "thing" at all, but the human person, and that the sense of uncleanness or taint associated with complicity in wrongdoing is the natural response of the human person to something fundamentally opposed to his nature and dignity.

XVII. THE NEEDSD OF THE PATIENT: ANTHROPOLOGY COUNTS

XVII.1 What is conducive to human well-being is determined by the nature of the human person. There can be no agreement upon what is good for the patient without first agreeing upon that. One's understanding of the nature of the human person determines not only how one defines the needs of the patient, but how one approaches every moral or ethical problem in medicine.

XVII.2 Reasoning from different beliefs about what man is and what is good for him leads to different definitions of "need," different understandings of "harm," different concepts of right and wrong, and, ultimately, to different ethical conclusions.120

XVII.3 Consider two different statements: (a) man is a creature whose purpose for existence depends upon his ability to think, choose and communicate; b) man is a creature for whom intellect, choice and communication are attributes of existence, but do not establish his purpose for existence. Statements (a) and (b) express non-religious belief, not empirically verified fact. Such beliefs - usually implicit rather than explicit - direct the course of subsequent discussion.

XVII.4 Bioethicists working from (a) would have little objection to the substitution of persistently unconscious human subjects for animals in experimental research.121 Those who accept (b) would be more inclined to object.122 Finally, bioethicists who do not believe in 'purpose' beyond filling an ecological niche would dismiss the whole discussion as wrong-headed.

XVII.5 What must be emphasized is that when people cannot achieve a consensus about the morality of a procedure, it is frequently because they are operating from different beliefs about the nature of the human person. Disagreement is seldom about facts - the province of science - but about what to believe in light of them - the province of philosophy and religion.

XVII.6 The same thing is true of disagreements about freedom of conscience for health care workers. Returning to the point made in VII.11 to VII.13, beliefs about the nature of the human person lie at the root of any attempt to set limits to this freedom. In fact, failure to engage at this level will probably frustrate more superficial efforts to resolve the conflict.

XVII.7 What follows is a plausible description of an aspect of the human person that is relevant to the present discussion. The threshold of plausibility ought to be sufficient, since the context for this discussion is a liberal democracy, in which there is an expectation that a plurality of more or less comprehensive world-views will be accommodated.

XVIII. THE HUMAN PERSON

The integrity of the human person

XVIII.1 The physician, a unique someone who identifies himself as "I" and "me,"123 has only one identity, served by a single conscience that governs his conduct in private and professional life. This moral unity of the human person is identified as integrity, a virtue highly prized by Martin Luther King, who described it at as essential for "a complete life."124

[W]e must remember that it's possible to affirm the existence of God with your lips and deny his existence with your life. . . . We say with our mouths that we believe in him, but we live with our lives like he never existed . . . That's a dangerous type of atheism.125
XVIII.2 Against this, some writers have invoked the venerable concept of self-sacrifice. "Professionalism," Professor R. Alta Charo suggests rhetorically, ought to include "the rather old-fashioned notion of putting others before oneself."126

XVIII.3 But self-sacrifice, in the tradition of King, Gandhi and Lewis, while it might mean going to jail or even the loss of one's life, 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. "He who surrenders himself without reservation," warned C.S. Lewis, "to the temporal claims of a nation, or a party, or a class" - one could here add 'profession' - "is rendering to Caesar that which, of all things, emphatically belongs to God: himself."127

XVIII.4 The integrity or wholeness of the human person was also a key element in the thought of French philosopher Jacques Maritain. He emphasized that the human person is a "whole, an open and generous whole" that to be a human person "involves totality."128 The notion of personality thus involves that of totality and independence; no matter how poor and crushed a person may be, as such he is a whole, and as a person subsists in an independent manner. To say that a man is a person is to say that in the depth of his being he is more a whole than a part and more independent than servile.129

XVIII.5 This concept is not foreign to the practice of modern medicine. Canadian ethicist Margaret Somerville, for example, asserts that one cannot overemphasize the importance of the notion of 'patient-as-person' and acknowledges a "totality of the person" that goes beyond the purely physical.130

The dignity and inviolability of the human person

XVIII.6 "Man," wrote Maritain, "is an individual who holds himself in hand by his intelligence and his will."

He exists not merely physically; there is in him a richer and nobler existence; he has spiritual superexistence through knowledge and through love.131

XVIII.7 Applying this principle, Maritain asserted that, even as a member of society or the state, a man "has secrets that escape the group and a vocation which the group does not encompass."132 His whole person is engaged in society through his social and political activities and his work, but "not by reason of his entire self and all that is in him."133

For in the person there are some things - and they are the most important and sacred ones - which transcend political society and draw man in his entirety above political society - the very same whole man who, by reason of another category of things, is a part of political society.134

XVIII.8 Even as part of society, Maritain insisted, "the human person is something more than a part;"135 he remains a whole, and must be treated as a whole.136 A part exists only to comprise or sustain a whole; it is a means to that end. But the human person is an end in himself, not a means to an end.137 Thus, according to Maritain, the nature of the human person is such that it "would have no man exploited by another man, as a tool to serve the latter's own particular good."138

XVIII.9 British philosopher Cyril Joad applied this to the philosophy of democratic government:

To the right of the individual to be treated as an end, which entails his right to the full development and expression of his personality, all other rights and claims must, the democrat holds, be subordinated. I do not know how this principle is to be defended any more than I can frame a defence for the principles of democracy and liberty.139

In company with Maritain, Professor Joad insisted that it is an essential tenet of democratic government that the state is made for man, but man is not made for the state.140

XVIII.10 To reduce human persons to the status of tools or things to be used for ends chosen by others is reprehensible: "very wicked," wrote C.S. Lewis.141 Likewise, Martin Luther King condemned segregation as "morally wrong and awful" precisely because it relegated persons "to the status of things."142

XVIII.11 Similarly, Polish philosopher Karol Wojtyla (later Pope John Paul II):. . . we must never treat a person as a means to an end. This principle has a universal validity. Nobody can use a person as a means towards an end, no human being, nor yet God the Creator.143

XVIII.12 Maritain, Joad, Lewis, King and Wojtyla reaffirmed in the twentieth century what Immanuel Kant had written in the eighteenth: "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."144

Human dignity and freedom of conscience

XVIII.13 Perhaps ironically, this was the approach taken when Madame Justice Bertha Wilson of the Supreme Court of Canada addressed the issue of freedom of conscience in the landmark 1988 case R v. Morgentaler. Madame Justice Wilson argued that "an emphasis on individual conscience and individual judgment . . . lies at the heart of our democratic political tradition."145 Wilson held that it was indisputable that the decision to have an abortion "is essentially a moral decision, a matter of conscience."

The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe. . . that in a free and democratic society it must be the conscience of the individual. Indeed, s. 2(a) makes it clear that this freedom belongs to "everyone", i.e., to each of us individually.146

XVIII.14 "Everyone" includes every physician. But, at this point in the judgement, Wilson was not discussing whether or not the conscience of a woman should prevail over that of an objecting physician, but how the conscientious judgement of an individual should stand against that of the state. Her answer was that, in a free and democratic society, "the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life."147

XVIII.15 Quoting the above passage from Professor Joad's book, Wilson approved the principle than a human person must never be treated as a means to an end - especially an end chosen by someone else, or by the state. Wilson rejected the idea that, in questions of morality, the state should endorse and enforce "one conscientiously-held view at the expense of another," for that is "to deny freedom of conscience to some, to treat them as means to an end, to deprive them . . .of their 'essential humanity'."148

XIX. CONCLUDING SUMMARY

XIX.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? A number of suggested responses to the issue are inadequate.

'Rights' claims

XIX.2 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.

Religious belief

XIX.3 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.

Consensus

XIX.4 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.

Private vs. public

XIX.5 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.

Contract theory

XIX.6 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.

Fiduciary duty

XIX.7 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.

Negligence/abandonment

XIX.8 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.

Legality

XIX.9 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.

Balance

XIX.10 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.'

Limits to freedom

XIX.11 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.

Complicity

XIX.12 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.

The human person

XIX.13 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.

Service, not servitude

XIX.14 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: once more, servitude, not service.

Recommendation

XIX.15 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.

XX. LOOKING TO THE FUTURE

XX.1 The principle that conscientious objectors ought to be forced to refer for or otherwise facilitate a morally controversial procedure would, logically, apply to all controversial procedures. If for no other reason than prudent self-interest, physicians and other health care workers who are inclined to support mandatory referral should think carefully about the broader ramifications of such a policy, especially if their own views would make them unwilling to facilitate sex-selective abortion, infant male circumcision, assisted suicide and euthanasia or even the amputation of healthy body parts.

XX.2 That one might be forced to refer for or otherwise facilitate assisted suicide and euthanasia is not a possibility that is commonly considered, since the procedures are illegal in most jurisdictions. But laws can be changed, as they have been in the Netherlands, Belgium and Oregon, and such changes in law bring with them changes in expectations. Since late 2003, general practitioners in Belgium unwilling to perform euthanasia have faced demands that they help patients find physicians willing to provide the service. It is argued that mandatory referral for euthanasia is required by respect for patient autonomy, the paradigm of "shared decision making" and the fact that euthanasia is a legal "treatment option."149