Submission to the College of Physicians and Surgeons of
Saskatchewan
(5 March, 2015)
Re: Conscientious Refusal
Appendix "A"
Origin of the CPSS Draft Policy Conscientious Refusal
Full Text
AI. Attempts to coerce physicians: abortion
AI.1 Since the early 1970's, the Canadian Medical Association (CMA) has
struggled repeatedly to resolve conflicts within the medical profession
created by legalization of abortion. A prime source of conflict has been a
continuing demand that objecting physicians be forced to provide or
facilitate the procedure by referral. An early experiment with mandatory
referral by objecting physicians was abandoned after a year because there
was no ethical consensus to support it; there is no evidence that the policy
was ever enforced.1
AI.2 A difficult compromise has emerged. Physicians are required to
disclose personal moral convictions that might prevent them from
recommending a procedure to patients, but are not required to refer the
patient or otherwise facilitate abortion. The arrangement preserves the
integrity of physicians who do not want to be involved with abortion, while
making patients aware of the position of their physicians so that they can
seek assistance elsewhere. The compromise has been used as a model for
dealing with other morally contested procedures, like contraception.
AI.3 Nonetheless, some activists, influential academics, powerful
interests, state institutions and professional organizations have been
working steadily to overthrow the compromise and compel objecting physicians
and other health care workers to provide, participate in or facilitate
abortion, contraception and related procedures. This was attempted, for
example, in a guest 2006 editorial in the Canadian Medical Association
Journal (CMAJ) by Professors Sanda Rodgers and Jocelyn Downie.2 The editorial
elicited a flood of protest. Dr. Jeff Blackmer, CMA Director of Ethics,
reaffirmed Association policy that referral was not required,3 and the CMAJ
declared the subject closed.
AII. Plans to coerce physicians:
assisted suicide and euthanasia
AII.1 Professor Downie
was a member of the "expert panel" of the Royal Society of Canada that, in
2011, recommended legalization of euthanasia and assisted suicide. The panel
conceded that health care workers might, for reasons of conscience or
religion, object to killing patients or helping them kill themselves.
AII.2 Professor Downie and her expert colleagues,
including Professors Daniel Weinstock and Udo Schuklenk, recommended that such objectors
should be compelled to refer patients to someone who would do so.4 They
claimed that this was consistent with "[t]oday's procedural solution to this
problem. . . in Canada as well as many other jurisdictions" with respect to
conscientious objection to abortion and contraception ("certain reproductive
health services"). Objecting physicians, they declared, are required "to
refer assistance seekers to colleagues who are prepared to oblige them."5
AII.3 It is not surprising that the authors did not cite a reference
to support this assertion. In Canada, outside of Quebec, there is, in fact,
no policy that objecting health care professionals should be compelled to
refer for abortions or other morally contested procedures. Given the
repudiation of her views by the CMA in 2006, Professor
Downie must have been aware of that.
AII.4 As the Supreme Court of Canada heard submissions
in Carter v. Canada in October. Professor Downie was live-tweeting
from the courtroom, while her Royal Society fellow panelist Udo Schuklenk
watched the live webcast. The goal of forcing objecting physicians to
participate in euthanasia and assisted suicide was on his mind.
I looked at the
list of interveners in the case. There's a whole bunch of them,
virtually all of whom are Christian activist groups, some more
fundamentalist than others. Their presentations were by and large
predictable. . . I
suspect they are a last ditch attempt at keeping the SCC from declaring the
part of the Criminal Code that criminalises assisted dying unconstitutional.
The God folks also served other arguments such as the sanctity-of-life
argument. . .
Then there was a lawyer representing groups called the Faith and Freedom
Alliance and the Protection of Conscience Project. He didn't address the
actual challenge but asked that the Court direct parliament to ensure that
health care professionals would not be forced to assist in dying if they had
conscientious objections. That, of course, is the case already today in
matters such as abortion. However, this lawyer wanted to extend conscience
based protections. Today health care professionals are legally required
to pass the help-seeking patient on to a health care professional willing to
provide the requested service. The lawyer wanted to strike out such
an obligation. I am not a fan of conscientious objection rights anyway,
so I hope the Court will ignore this. . . (Emphasis added)6
AIII. Plans to coerce physicians: the CRG Model Policy
AIII.1 Jocelyn Downie and Daniel Weinstock, who, with
Udo Schuklenk were members of the Royal Society "expert panel," are
also part of the faculty of the "Conscience Research Group" (CRG). It is headed by Professor Carolyn McLeod and supported by research
associate Jaquelyn Shaw and seven graduate students.7
AIII.2 A central goal of the group is to entrench in
medical practice a duty to refer for or otherwise facilitate contraception,
abortion and other "reproductive health" services. As the involvement
and arguments of Daniel Weinstock and Jocelyn Downie demonstrate, what is
advocated by the "Conscience Research Group" equally applies to forcing
physicians who are unwilling to kill patients or commit suicide to find a
colleague who will.
AIII.3 The Conscience Research Group advocates a
coercive policy on conscientious objection written by three members of the
Group, Downie, McLeod and Shaw. As a result of the negative response
of physicians and the CMA to Professor Downie's 2006 CMAJ editorial (AI.3),
they decided to convince provincial Colleges of Physicians and Surgeons to
adopt the CRG model:
We decided to proceed by way of regulatory bodies
rather than the CMA for two main reasons: 1) the Colleges of Physicians and
Surgeons, not the CMA, are the regulators of physicians, which means their
policies have more force than CMA policies; and 2) in view of the reaction
of the CMA to the editorial described earlier, we thought CMA policy reform
was unlikely.8
AIII.4 This explanation was part of the introduction to
the draft CRG policy, A Model Conscientious
Objection Policy for Canadian Colleges of Physicians and Surgeons
(below, right column).
AIV. Saskatchewan College replicates the CRG Model
AIV.1 On 16 January, 2015, the Council of the College
of Physicians and Surgeons of Saskatchewan approved in principle a draft
policy statement on conscientious objection and directed the Registrar to
begin consultations about it.9
AIV.2 The draft document, Conscientious Refusal, is
virtually identical to A Model Conscientious
Objection Policy for Canadian Colleges of Physicians and Surgeons,
the model proposed to Canadian
Colleges by Professor Downie and her colleagues.
AIV.3 Nonetheless, the College's Associate Registrar, Bryan
Salte, has denied that
Conscientious Refusal "was taken" from from A Model Conscientious
Objection Policy for Canadian Colleges of Physicians and Surgeons.
He did acknowledge that the Conscience Research Group's proposal was
"significant source" for the draft College policy.10
AIV.4 Very strictly speaking, this is true (See
Appendix "B"). Nonetheless, the
fact remains that the draft policy approved in principle by the College
Council is virtually identical to a model policy proposed by activists whose
goal is to force physicians unwilling to kill patients or to provide
abortions to help to arrange for someone else to do so.
AIV.5 In
the columns below, yellow highlighting marks the sections of text in the
Downie/McLeod/Shaw model that are identical to the College's proposed draft,
while turquoise highlighting of sections in the College's draft marks those
parts that differ from the Conscience Research Group model.
College of Physicians and Surgeons of Saskatchewan
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Jocelyn Downie, Carolyn McLeod and Jacquelyn Shaw
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Draft Policy-
Conscientious Refusal
[
Original Text ]
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Moving Forward with a Clear Conscience: A Model Conscientious
Objection Policy for Canadian Colleges of Physicians and Surgeons
[Original
Text]
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This document is a policy of the College of Physicians and Surgeons of
Saskatchewan and reflects the position of the College.
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This document is a policy of the College
of Physicians and Surgeons of [location]
and reflects the position of the College.
It is expected that all members of the College will comply with it.
Failure to do so will render members subject to College investigation
and may result in disciplinary action being taken against them.
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1. Purpose
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1. Purpose
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This policy seeks to provide clear guidance to physicians and the
public about the obligations which physicians
have to provide care to
patients and how to balance those obligations with physicians’ right to
act in accordance with their conscience if they conflict.
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This policy seeks to provide clear guidance
to physicians and the public about the right of physicians to act
in accordance with their conscience as well as
obligations they have that may
conflict with this right and concern the provision of health
information, referrals, and health services. This policy also outlines a
process for the public to make complaints against physicians who fail to
meet these obligations.
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2. Scope
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2. Scope
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This policy applies to all situations in which physicians are
providing, or holding themselves out to be providing, health services.
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This policy applies to all situations in which
physicians are providing, or holding themselves out to be providing,
health services.
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3. Definitions
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Freedom of conscience: for purposes of this policy,
actions or thoughts that reflect one’s deeply held and considered moral
or religious beliefs.
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Freedom of conscience:
for purposes of this policy, freedom to
act in ways that reflect one’s deeply held and
considered moral or religious beliefs.
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Lawful excuse: a reason provided by law that
relieves a person of a duty (e.g., physicians have a lawful excuse not
to treat a patient who requests a procedure that will not achieve the
goal that the patient seeks).
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Lawful excuse: a reason provided
by law that relieves a person of a duty (e.g., physicians have a lawful
excuse not to treat a patient who requests a procedure that will
not
achieve the goal the patient seeks).
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4. Principles
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The College of Physicians and Surgeons has an obligation to serve and
protect the public interest. The Canadian medical profession as a whole
has an obligation to ensure that people have access to the provision of
legally permissible and publicly-funded health services.
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The College of Physicians and Surgeons has an
obligation to serve and protect the public interest. The Canadian medical profession as a whole has an
obligation to ensure that people have access to the provision of legally
permissible and publicly funded health services.
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Physicians have an obligation not to interfere with or obstruct a patient's right to access legally permissible and publicly-funded health
services.
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Physicians have an obligation not to interfere
with or obstruct people’s access to legally permissible and publicly
funded health services.
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Physicians have an obligation to provide health information,
referrals, and health services to their patients in a non-discriminatory
fashion.
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Physicians have an obligation to provide health
information, referrals, and health services to their patients in a
non-discriminatory fashion.
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Physicians have an obligation not to abandon their patients.
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Physicians have an obligation not to abandon
their patients.
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In certain circumstances a physician will have a lawful excuse to
refuse to provide a service requested by a patient.
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Physicians’ freedom of conscience should be respected.
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Physicians’ freedom of conscience should be
respected.
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It is recognized that these obligations and freedoms can come into
conflict. This policy establishes what the College expects physicians to
do in the face of such conflict.
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It is recognized that these obligations and
freedoms can come into conflict. This policy establishes what the
College expects physicians to do in the face of such conflict.
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5. Obligations
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5. Obligations
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5.1 Taking on new patients
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5.1 Taking on new patients
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Physicians must not refuse to accept patients based on the following
characteristics of, or conduct by, them:
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Even if doing so would violate their deeply held and considered moral
or religious beliefs, physicians must not
refuse to take on individuals as
patients based on the following characteristics of or conduct by them:
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a. age;
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a. age;
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b. race, national/ethnic/Aboriginal origin, colour;
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b. race, national/ethnic/Aboriginal origin, colour;
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c. sex, gender identity, or gender expression;
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c. sex, gender identity, or gender expression;
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d. religion or creed;
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d. religion or creed;
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e. family or marital status;
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e. family or marital status;
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f. sexual orientation;
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f. sexual orientation;
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g. physical or mental disability;
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g. physical or mental disability;
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h. medical condition;
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h. medical condition;
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i. socioeconomic status;
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i. socioeconomic status;
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j. engaging in activities perceived to contribute to ill health
(e.g., smoking, drug or alcohol abuse); or
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j. engaging in activities perceived to contribute to ill health
(e.g., smoking, drug or alcohol abuse); or
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k. requesting or refusing any particular publicly-funded health
service.
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k. requesting or refusing any particular publicly funded health
service.
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The above obligation does not prevent physicians from making bona
fide decisions, or exercising professional judgment, in relation to
their own clinical competence. Physicians are always expected to
practice medicine in keeping with their level of clinical competence to
ensure that they safely deliver quality health care. If physicians
genuinely feel on grounds of lack of clinical competence
that they
cannot accept someone as a patient because they cannot
appropriately
meet that person’s health care needs, then they should not
do so and
should explain to the person why they cannot do so.
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The above obligation does not prevent
physicians from making bona fide
decisions, or exercising professional judgment, in relation to their own
clinical competence.
Physicians are always expected to practice
medicine in keeping with their level of clinical competence to ensure
that they safely deliver quality health care. If physicians
genuinely feel that they cannot accept someone
as a patient because they cannot competently
meet that person's health care needs, then
they should not accept that person and
should explain to him or her why they cannot do so.
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The above obligation does not prevent physicians from making bona
fide decisions to develop a non-discriminatory focused practice.
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The above obligation does not prevent
physicians from making bona fide
decisions to develop a specialist practice.
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Where physicians know in advance that they will not provide specific
services, but will provide only referrals (in accordance with
s. 5.3), they
must communicate this fact as early as possible and preferably in
advance of the first appointment with an individual who wants to become
their patient.
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Where physicians know in advance that they will
not provide specific services, but will provide only referrals (in
accordance with s.
5.3), they must communicate this fact as early as possible and
preferably in advance of the first appointment with an individual who
wants to become their patient.
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5.2 Providing
information to patients
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5.2 Providing information to patients
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Physicians must provide their patients with the health information
required to make legally valid, informed choices about medical treatment
(e.g., diagnosis, prognosis, and treatment options, including the option
of no treatment or treatment other than that recommended by the
physician), even if the provision of such information conflicts with the
physician's deeply held and considered moral or religious beliefs.
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Physicians must provide
their patients with the health information required to make legally
valid, informed choices about medical treatment (e.g., diagnosis,
prognosis, and treatment options, including the option of no treatment
or treatment other than that
recommended by the physician), even if the
provision of such information confl icts with the physician’s deeply
held and considered moral or religious beliefs.
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Physicians must not provide false, misleading, intentionally
confusing, coercive, or materially incomplete information to their
patients.
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Physicians must not provide false, misleading,
intentionally confusing, coercive, or materially incomplete information
to their patients.
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All information must be communicated by the physician in a way that
is likely to be understood by the patient.
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All information must be communicated by the
physician in a way that is likely to be understood by the patient.
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While informing a patient, physicians must not communicate or
otherwise behave in a manner that is demeaning to the patient or to the
patient’s beliefs, lifestyle, choices, or values.
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While informing a patient, physicians must not
communicate or otherwise behave in a manner that is demeaning to the
patient or to the patient’s beliefs, lifestyle, choices, or values.
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Physicians must not promote their own moral or religious beliefs when
interacting with a patient.
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The obligation to inform patients may be met by delegating the
informing process to another competent individual for whom the physician
is responsible.
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The obligation to inform patients may be met by
delegating the informing process to another competent individual for
whom the physician is responsible.
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5.3 Providing
referrals for health services |
5.3 Providing referrals for health services
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Physicians can decline to provide legally permissible and
publicly-funded health services if providing those services violates
their freedom of conscience. However, in such situations, they must make
a timely referral to another health
care provider who is willing and able to accept the patient and provide
the service.
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Physicians can decline to provide legally
permissible and publicly funded health services if providing those
services violates their freedom of conscience. However, in such situations, they must make a
referral to another health care provider who
is willing and able to accept the patient and provide the service.
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This obligation does not prevent physicians from refusing to refer
patients where there exists a recognized lawful excuse (see
s. 3).
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This obligation does not prevent physicians from
refusing to refer patients where there exists a recognized lawful excuse
(see s. 3).
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While discussing a referral with a patient, physicians must not
communicate, or otherwise behave in a manner that is demeaning to the
patient or to the patient’s beliefs, lifestyle, choices, or values.
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While discussing a referral with a patient,
physicians must not communicate, or otherwise behave in a manner that is
demeaning to the patient or to the patient’s beliefs, lifestyle,
choices, or values.
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When physicians make referrals for reasons having to do with their
moral or religious beliefs, they must continue to care for the patient
until the new health care provider assumes care of that patient.
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When physicians make referrals to
protect their own freedom of conscience, they
must continue to care for the patient until the new health care provider
assumes care of that patient. |
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5.4 Treating patients
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5.4 Treating patients
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When a referral to another health care provider is not possible
without causing a delay that would jeopardize the patient’s health or
well-being, physicians must provide the patient with all health services
that are legally permissible and publicly-funded and that are consented
to by the patient or, in the case of an incompetent patient, by the
patient’s substitute decision-maker. This obligation holds even in
circumstances where the provision of health services conflicts with
physicians’ deeply held and considered moral or religious beliefs.
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When a referral to another health care provider
is not possible without causing a delay that would jeopardize the
patient’s health or well-being, physicians must
provide the patient
with all health services that are legally permissible and publicly
funded and that are consented to by the patient or, in the case of an
incompetent
patient, by the patient’s substitute decision-maker. This
obligation holds even in circumstances where the provision of health
services conflicts with physicians’ deeply held and considered moral or
religious beliefs.
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This obligation does not prevent physicians from refusing to treat a
patient where there exists a recognized lawful excuse (see
s. 3).
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This obligation does not prevent physicians from
refusing to treat a patient where there exists a recognized lawful
excuse (see s. 3).
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6. Complaints Process
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Upon notification of a complaint under this Policy (see Form 2 [to be
developed]), the College will investigate, prosecute, and remedy
breaches of the obligations set
out in this Policy.
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7. Penalties
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Failure to meet the obligations set out in this policy constitutes
professional misconduct. Physicians who violate this policy will be
subject to discipline by the College.
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Notes:
1. A requirement that an objection physician
"advise the patient of other sources of assistance," was introduced by the
CMA General Council in June, 1977, and revoked the following year. Geekie
D.A. "Abortion
referral and MD emigration: areas of concern and study for CMA." CMAJ,
January 21, 1978, Vol. 118, 175, 206 (Accessed 2014-02-22);
"Ethics
problem reappears." CMAJ, July 8, 1978, Vol. 119, 61-62 (Accessed
2014-02-22).
In 2000, during a telephone conversation with the Project
Administrator, Dr. John R. Williams, then CMA Director of Ethics, confirmed
that the Association did not require objecting physicians to refer for
abortion. He explained that the CMA had once had a policy that required
referral, but had dropped it because there was "no ethical consensus to
support it." This was clearly a brief reference to the short-lived 1977
revision of the Code of Ethics and ensuing controversy.
2. In a guest 2006 editorial in the
Canadian Medical Association Journal, Professors Sanda Rodgers of
the University of Ottawa and Jocelyn Downie of Dalhousie University
complained that "[s]ome physicians refuse to provide abortion services and
refuse to provide women with information or referrals needed to find help
elsewhere." Rodgers S. Downie J.
"Abortion: Ensuring Access." CMAJ July 4, 2006 vol. 175 no. 1
doi: 10.1503/cmaj.060548 (Accessed 2014-02-23)
3. Blackmer J.
"Clarification of the
CMA’s position on induced abortion." CMAJ April 24, 2007 vol.
176 no. 9 doi: 10.1503/cmaj.1070035 (Accessed 2014-02-22)
4. Schuklenk U, van Delden J.J.M, Downie J, McLean S,
Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life Decision
Making (November, 2011) p. 101 (Accessed 2014-02-23)
5. Schuklenk U, van Delden J.J.M, Downie J, McLean S,
Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life Decision
Making (November, 2011) p. 62 (Accessed 2014-02-23)
6. Schuklenk U.
"Supreme Court of Canada heard
arguments in Charter challenge to assisted dying criminalisation." Udo Schuklenk's Ethx Blog, T, Thursday, October 16, 2014
(Accessed 2015-02-22)
7.
Let their
conscience be their guide? Conscientious refusals in reproductive health
care. (Accessed 2014-11-21)
8. Downie J. McLeod C. Shaw J.
"Moving Forward with a Clear Conscience: A Model Conscientious
Objection Policy for Canadian Colleges of Physicians and Surgeons."
Health Law Review, 21:3, 2013, p. 29
9. College of Physicians and Surgeons of
Saskatchewan,
Executive Summary of the 16 January, 2015 Council Meeting (Accessed
2015-02-22)
10. Weatherbe S.
"'This is moral genocide': Canadian doctors blast plans to force them into
helping patients procure abortion." LifeSite News, 17
February, 2015 (Accessed 2015-02-22)
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