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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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Submission to the College of Physicians and Surgeons of Nova Scotia
Re: Standard of Practice: Physician-Assisted Death

Appendix "B"

Conscience Research Group


B1.    Attempts to coerce physicians: abortion

B1.1    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

B1.2  A difficult compromise 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.

B1.3    Nonetheless, some activists, influential academics, powerful interests, state institutions and professional organizations continued to work 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.

B2.    Plans to coerce physicians: assisted suicide and euthanasia

B2.1    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.

B2.2    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

B2.3    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.

B2.4    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

B3.    Plans to coerce physicians: the CRG Model Policy

B3.1    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).  The Conscience Research Group (CRG) was formed by Professor Carolyn McLeod of the University of Western Ontario with the assistance of a 2009 grant of over $240,000.00 from the Canadian Institutes of Health Research (CIHR).7  CIHR provided members of the group with another $24,500.00 in grants between 2010 and 2012.8  The Group is supported by research associate Jaquelyn Shaw and eight graduate students.9  

B3.2    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.

B3.3    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 (B1.3), 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.10

B4.    CRG convenes meeting with College representatives

B4.1    It appears that the CRG organized a meeting in 2013 to advance their Model Concientious Objection Policy.  According to Bryan Salte, the meeting was funded by a research grant (presumably the CIHR granted noted above) and included:

  • Bryan Salte, LLB, Associate Registrar, College of Physicians and Surgeons of Saskatchewan
  • Andréa Foti, Manager- Policy Dept., College of Physicians and Surgeons of Ontario
  • Dr. Gus Grant, Registrar of the College of Physicians and Surgeons of Nova Scotia
  • A representative of the Collège des Médecins du Québec
  • ". . . representatives from the faculties of law, medicine and philosophy from academia and other invited individuals."11

B4.2    The CRG authors appear to refer to this meeting in the introduction to their model policy:

Feedback on the draft policy was also solicited from a number of relevant experts: academics who do research primarily in health law, biomedical ethics, medicine or other health professions; physician regulatory body members; and local community organizations dealing with women’s health, sexual health, and the health of more marginalized populations (e.g. rural populations, street youth, First Nations). . . (Emphasis added)10

B4.3    It is not unlikely that the various faculties were represented by CRG members, perhaps augmented by supportive colleagues.

B4.4    The goal of the meeting "was to develop a policy that could be adopted by Canadian Colleges of Physicians and Surgeons to guide physicians who have a conscientious objection to providing certain forms of health care." 

While that is most frequently experienced in issues pertaining to reproduction i.e. birth control, abortion and emergency contraception, it can arise in a number of other situations as well, such as the provision of blood products and end of life care.11

B4.4    According to Byran Salte, participants at the meeting agreed upon the text of what he subsequently called the "draft policy statement developed by the Conscientious Objections Working Group." This was almost an exact duplicate of what the CRG published later in 2013 as its Model Conscientious Objection Policy.12  


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. 

2009
   
Principal Investigator:   MCLEOD, Carolyn W
Co-Investigators:   BAYLIS, Françoise; DOWNIE, Jocelyn G; HICKSON, Michael W
Institution Paid:   University of Western Ontario
Program:   Operating Grant
Year/Month:   2009/09
Assigned PRC:   HLE
Project Title:   Let Conscience Be Their Guide? Conscientious Refusals in Reproductive Health Care
Details:   Many bioethicists and health-policy makers are currently struggling with what to do about conscientious refusals by health care professionals to provide standard health care services, such as abortions. The proposed research addresses this complex moral and legal issue. Our team will conduct rigorous analyses of when conscientious refusals--in particular those that occur in reproductive health care--are morally and legally permissible, and of which policies and educational initiatives we need in Canada with respect to these refusals. Our practical aim is to encourage delivery of reproductive health care services that is appropriately respectful of conscience and that safeguards women's reproductive health.
CIHR Contribution:   $240,296
CIHR Equipment:   $0
Term Yrs/Mths.:   3 yrs 0 mth
    Source: CIHR, Funding Decisions Data (Accessed 2015-02-23)

8. 

2010
   
Principal Investigator:   MCLEOD, Carolyn W
Co-Investigators:    
Institution Paid:   University of Western Ontario
Program:   CIHR Café Scientifique Program
Year/Month:   2010/06
Assigned PRC:   ***
Project Title:   The Spark of Conscience Inflames Debate: Conflicts of Conscience in Medicine
Details:   Conscientious refusal by health care professionals to provide standard health services, such as abortions, is a subject of intense debate in Canada and elsewhere. Recent discussion in the Canadian Medical Association Journal about refusals by physicians to participate in abortions revealed that the Canadian Medical Association lacks a coherent policy on conscientious objection. The CIHR Café Scientifique, "The Spark of Conscience Inflames Debate," will provide a public forum for deliberation on what the CMA policy ought to be. The panelists and moderator are all experts in areas of profound relevance to this issue: bioethics, health law, health policy, religion, and medicine. 
CIHR Contribution:   $3,000
CIHR Equipment:   $0
Term Yrs/Mths.:   1 yr 0 mth
    Source: CIHR, Funding Decisions Data (Accessed 2015-02-23)
2011
   
Principal Investigator:   KANTYMIR, Lori 
Co-Investigators:   HICKSON, Michael W; MCLEOD, Carolyn W
Institution Paid:   University of Western Ontario
Program:   Dissemination Events - Priority Announcement: Ethics
Year/Month:   2011/02
Assigned PRC:   KDE
Project Title:   Santa Clara Workshop on Conscientious Refusals in Health Care
Details:   The Santa Clara Workshop on Conscientious Refusals will bring together a CIHR team of researchers studying conscientious refusals in health care in Canada with U.S. researchers and members of the U.S. public to discuss policy options. The workshop is structured to facilitate knowledge exchange between these groups by devoting Day 1 to public discussion and Day 2 to collaboration between expert researchers. The workshop will take an inter-disciplinary approach to the problem of conscientious refusals in health care, and will include presentations from expert researchers working in bioethics, medicine, philosophy, law, and religious studies.  
CIHR Contribution:   $18,500
CIHR Equipment:   $0
Term Yrs/Mths.:   1 yr. 0 mth.
    Source: CIHR, Funding Decisions Data (Accessed 2015-02-23)
2012
   
Principal Investigator: SHAW, Jacquelyn
Co-Investigators:    
Institution Paid:   Dalhousie University (Nova Scotia)
Program:   CIHR Café Scientifique Program
Year/Month:   2012/05
Assigned PRC:   CAF
Project Title:   Liberation therapy aftercare, body modification, reproductive and other health services: can your healthcare provider refuse to treat you because it bothers his (or her) conscience?
Details:   Conscientious objection has largely entered the public consciousness via the polarizing lens of debates on access to abortion services. Yet such debate reflects only the tip of a much larger iceberg of contexts in which healthcare providers conscientiously refuse to provide certain services. For example, what should be done about conscientious refusals of care to patients who engage in health-related activities of which a practitioner does not professionally approve (e.g., smoking, overeating, body modification, accessing unapproved therapies overseas)? These service refusals may well be an expression of conscience on the part of healthcare professionals. However, they also risk denying individual patients access to healthcare services and they may in some cases be argued to be discriminatory. The challenging question before us is how we can create policies that permit genuinely conscience-based refusal opportunities, while also ensuring that patients receive adequate, non-discriminatory access to desired healthcare services. The panelists and moderator are experts in areas of relevance to the subject matter: i.e., bioethics, medicine, dentistry and health law and policy. We invite all members of the public, including health and legal professionals, to come to the Café Scientifique, where they can enjoy free refreshments, ask questions of expert panelists, share their own experiences, and weigh in on a matter of great importance to Canadian patients and providers today. 
CIHR Contribution:   $3,000
CIHR Equipment:   $0
Term Yrs/Mths.:   1 yr 0 mth
    Source: CIHR, Funding Decisions Data (Accessed 2015-02-23)

9.  Let their conscience be their guide? Conscientious refusals in reproductive health care. (Accessed 2016-02-05)

10.  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

11.  Letter from Bryan Salte to the Registrars of Colleges of Physicians and Surgeons in Canada.  Redacted in Document 200/14, College of Physicians and Surgeons of Saskatchewan, Report to Council from the Registrar, 31 July, 2014, p. 8.

12.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Report to Council from the Registrar, 31 July, 2014, p. 4, listed as the first of the attached documents, identifying the text reproduced on pages 5 to 7 of the report.  The few differences between the documents are largely editorial and are compared below.


"Draft policy statement developed by the Conscientious Objections Working Group."
 
Jocelyn Downie, Carolyn McLeod and Jacquelyn Shaw

3. Definitions

 

3. Definitions

Freedom of conscience: for purposes of this policy, actions or thoughts that reflect one’s deeply held and considered moral or religious beliefs.

 

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.

5.1 Taking on new patients

 

5.1 Taking on new patients

Even if taking on certain individuals as patients would violate the physician's deeply held and considered moral or religious beliefs, physicians must not refuse to take people on based on the following characteristics of or conduct by them:  

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:

. . . 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.

 

. . . 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.

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.

 

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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