Submission to the College of Physicians and Surgeons of Alberta
Re: CPSA Draft Standards of Practice
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.
The Absolutionist Premise
is illustrated by the opinion of
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
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.
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
(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
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.
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.
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
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.
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
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
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
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.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.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."126XVIII.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."127XVIII.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.129XVIII.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
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
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
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
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."14
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.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
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.
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.
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.
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.
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
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.
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.
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.
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.'
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.
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
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.
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.
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.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
Benson, Iain, There are no secular