The Need to Accommodate Conscience and Religion

I would like to address today what I see as a great flaw in our current code of ethics - the failure to provide for the accommodation of conscience and religion.

Before I develop this however, I would like to touch on the international recognition of the dignity of the individual because such dignity is for all people whether, in our context, patients seeking medical services broadly construed, or those who provide them whether medical services personnel or pharmacists.

Both the Charter of the United Nations of 1945 and the Universal Declaration of Human Rights of 1948, a document to which Canada is a signatory, affirm the dignity and the intrinsic worth of every individual human being. Proclaimed immediately after the atrocities of WWII, the Human Rights Declaration, article I, states, "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood". In other words, we are intellectual, moral and social beings of great worth. Our worth as people cannot turn on the fact that we agree with one another about everything. Our worth and dignity exist despite our disagreements and it is a measure of our civil freedoms and democratic maturity how we as nations, or as groups within nations, manage disagreement and dissent.

On November 16th, 1994, the Canadian Pharmacy Association presented a Government Brief to the Senate Committee studying euthanasia and assisted suicide.¹

I quote: " From an ethical perspective, should euthanasia be legalized, the pharmacists we consulted feel that the right to chose must be safeguarded at all levels of the decision making process and that the right to chose must be respected. The physician, the pharmacist, the nurse should have a right to take part or not in assisting a person once he or she has reached a decision to put an end to his or her life. Should they elect not to participate, their duty to their patient requires that they refer them to health professionals who will assist them".

Although the brief states that the Canadian Pharmacists Association has not taken a position on this issue, the fact is that it has taken a very clear position on the duty to refer. I would also argue that not taking a position is already taking a position. In this case, the Association is clearly upholding one side of a debate that is understood to have two valid sides - - unless, that is, the ideology of choice at all costs has somehow trumped the conscience and beliefs that our own Constitution safeguards as a "fundamental right and freedom." In fact, the Associations' lack of firm opposition to euthanasia leads to its support by default. Thus it ought to reconsider the meaning of its own mandate, which is "The Protection of the Public Health Shall be of Prime Consideration". It could perhaps consider reformulating it to: " The Protection of the Public Choice Shall be of Prime Consideration".

I have chosen to quote this statement because it truly encompasses what I see as the problem with our current Code of Ethics (value VIII). Although there may be some pharmacists who will not suffer conscience pangs for referring their patient to be euthanized by a colleague, there may be those who would have to refuse to do so and not see it as part of their duty towards their patient at all to refer them to their own deaths.

You may wonder why I chose to make my point by choosing an extreme, hypothetical example. However, I would argue that if it is being talked about, it is not so hypothetical.

In 1992, the Department of Bioethics at The Hospital for Sick Children in Toronto published a book by Francois Baylis and Jocelyn Downie called "Ethics Codes, Standards, and Guidelines for Professionals working in a Health Care Setting in Canada." As the title suggests, this book is a compilation of the codes of ethics and professional guidelines of the many professions working in health care settings in Canada. In the introduction the authors state that codes of ethics, standards, and guidelines are documents that outline behavioral and procedural standards of a profession. Typically, they go on, these documents include a set of principles or rules that establish the standards of ethical practice:

"It is important to note that while some may see the publication of this collection as advocating unthinking adherence to a set of codified principles and rules, this is not an objective of the book. An individual's conscience must always inform his or her actions even in the presence of a professional code, standards, or guidelines". (emphasis added).

Though some of you may disagree, a Code of Ethics or set of principles should never replace individual conscience. What does this mean in practice?

To enforce mandatory referral for an action that I myself would not perform, and worse still, to mandate that I perform such an action if no one else is available to do so (as Value VIII of the Code of Ethics advocates) is like telling me to shut down my conscience for an instant. To shut down one's conscience is to stop dialoguing with oneself, to stop thinking deeply about life, about the consequences of one's present and future. It means to be content with being a cog in a wheel, the excuse used by those who had participated in the atrocities at Auschwitz. Freedom of expression and conscience matter in a society because they are, in part, our means of keeping debates alive on important issues.

Euthanasia is not yet legal in Canada. However, other contentious issues already exist and may continue to arise which may produce moral dilemmas for some pharmacists. The fact that the College would prohibit a pharmacist from objecting to participate in any way in a procedure he/she finds morally abhorrent is quite worrisome.

I would like to quote ethicist Teresa Iglesias², Senior lecturer in Philosophy at the National University of Ireland in Dublin. She says, "A human being is an ethical being, personally responsible for choices between what is good and bad, right or wrong. A central tenet of the medical profession is to do good and not to harm the patient (a truth expressed in the so-called principles of beneficence and non-maleficence). This truth is enshrined in our recognition of the dignity and worth of what and who we are. It is the minimum requirement for our natural flourishing and development as trustful human beings." The principles of beneficence and non-maleficence, she says, are bedrock principles. They are givens and do not need to be proven. They constitute the basis of all human relations of all times. This constitutes the ethical foundation of our practice in the medical profession. Teresa then goes on to explain that the Medical profession is intrinsically ethical. It is something good in itself, and its goodness is not derived from extrinsic sources such as religion or social customs, or the views of society, or the views of individual healthcare professionals or patients. Its intrinsic value, she argues, lies in its being a practice dedicated to a human good, that is, the pursuit of healing and caring for those who are sick. In other words, the promotion of health is the aim of medicine, a good aim in itself.

Now, Iglesias proposes some very interesting questions for discussion: Is Medicine (I add Pharmacy) a morally-neutral activity, value-free, like science or technology? Are doctors/(pharmacists), primarily scientists rather than healers? Does Medicine have intrinsic ethical principles, or can these be created and are they external to the profession?

Professor Iglesias believes that Medicine is intrinsically ethical, and I would have to agree with her. If health is the aim of medicine, and health is a good aim or goal, then medicine must be ethical in itself.

Iglesias proposes two models for the practice of medicine [pharmacy]; one which has ethics as intrinsic to practice, the other which has ethics as extrinsic to practice (as an add-on, let us say). The two diagrams below can exemplify this.

I propose that we need to rediscover the traditional aim of medicine as a healing profession, and by the same token, of pharmacy as a complementary (but not subservient or inferior) healing profession.

At present the ethics of the healthcare professions is increasingly allowing itself to be influenced and run by external factors such as politics, the fashion, ideologies, and religion. This is what some are calling Ethics in Practice. When ideologies prevail which some of us strongly believe to be morally untenable or believe actually harm our patients, those who disagree need to have recourse to conscientious objection. Our current Code of Ethics (Value VIII) does not provide for this option in practice.

In Jan/Feb 2006, the College of Physicians and Surgeons of Ontario featured a story in one of their publications entitled "Staying on Course: Marrying Ethics and Practice".³ In this feature Professor and Bioethicist Abbyann Lynch was interviewed. Among other things, Professor Lynch has been working with the College since 1996, running a one-on-one ethics course for individuals referred by the Discipline, Complaints or Executive Committees. Lynch believes that it's easy to parrot back what an article or policy states; what she wants to see, however, is whether the doctor can use his "moral imagination," i.e. Can the doctor explain why certain actions or behaviors are simply unacceptable? The challenge for the doctors in her course, for any doctor (and I would add for any pharmacist or other healthcare professional), is to "marry ethics and practice".

Dr. Lynch goes on to quote a line from a book she highly recommends called "The Virtues in Medical Practice": "Can a sick person be healed - made whole again - when he is suspicious of the motives and methods of his healer?........ Trust must be engendered and built up gradually by fidelity to promise from the very first moments of professional relationship. It is a fragile phenomenon as it is an ineradicable dimension of a helping and healing relationship."

While the above book co-authored by Dr. Edmund Pellegrino, a physician, and Professor David Thomasma, a philosopher, is addressed mainly to physicians, I think that it could be very worthwhile reading for us pharmacists as well.

If the College of Pharmacists is concerned about spelling out every one of our actions in a Code for fear that pharmacists will not know how to behave in case of ethical conflict, then perhaps the best thing it could do is to supply educational resources and encourage its members to assist at the yearly events such as the Ethics Conference sponsored by the College of Physicians and Surgeons of B.C.

Part of this study will be the framework within which ethical codes of professional bodies function in Canadian law. Accommodation of conscience and religion is a Charter Right within Section 2(a) of the Canadian Charter of Rights and Freedoms. According to Iain Benson, legal academic and constitutional lawyer, this sets out a positive duty for all law (and Codes of Conduct for professional bodies as well) to recognize the place for individual conscience and religion and to accommodate "up to the point of undue hardship" these beliefs. The test, according to Benson, is not, that the officiating body agree with the position of the person opposed on conscientious or religious grounds. In fact, religious beliefs or conscientious beliefs are to be respected without a weighing of whether the body agrees with them or not. Recent decisions of the courts suggest that there is a legal requirement to provide for reasonable accommodation and that failure to do so indicates a faulty understanding of pluralism and dignity.

A paper recently written by Iain Benson and being published in a U.S. Law Journal clearly shows how the courts have approached religious belief and accommodation.⁴ It is not, Benson states, for a State at large or the court in its judicial functions, however, to either go beyond a simple test of "sincerity" or "honesty of belief" or to require that there be an objective obligation, on the part of a religious body, in order to satisfy the test of "religious belief." The reticence of the State and the law to delve into these matters is because, according to Chief Justice McLachlin:

"the State [and subordinate bodies within it are] … is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment", custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion." ⁵

Citing an American constitutional scholar, Chief Justice McLachlin cautions against too rigorous a search for "sincerity" or "honesty" on the part of the person claiming religious liberty recognition and states that:

"The court's role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings." ⁶

The implications of these approaches are clear. Once a pharmacist indicates a sincerely held conscientious or religious objection to a practice such a belief must be accommodated up to the level of undue hardship.

Justice Gonthier, in dissent in the Chamberlain decision of the Canadian Supreme Court, stated, and no other judge disagreed with these statements, that:

"it is a feeble notion of pluralism that transforms 'tolerance' into 'mandated approval or acceptance'" and that "the inherent dignity of the individual not only survives such moral disapproval, but to insist on the alternative risks treating another person in a manner inconsistent with their human dignity." ⁷

In other words, we can politely agree to disagree, and can best respect the dignities of all involved in a disagreement by not mandating approval, thus allowing for a plurality of philosophical thought and ideas in our society (and within our College).

He went on to make the following trenchant remarks about use and abuse of "tolerance" arguments:

[L]language espousing "tolerance" ought not be employed as a cloak for the means of obliterating disagreement. Section 15 of the Charter protects all persons from discrimination on numerous enumerated and analogous grounds, including the grounds of religion and sexual orientation. Language appealing to "respect", "tolerance", "recognition" or "dignity", however, must reflect a two-way street in the context of conflicting beliefs, as to do otherwise fails to appreciate and respect the dignity of each person involved in any disagreement, and runs the risk of escaping the collision of dignities by saying "pick one." But this cannot be the answer. In my view, the relationship between s. 2 and s. 15 of the Charter, in a truly free society, must permit persons who respect the fundamental and inherent dignity of others and who do not discriminate, to still disagree with others and even disapprove of the conduct or beliefs of others. Otherwise, claims for "respect" or "recognition" or "tolerance", where such language becomes a constitutionally mandated proxy for "acceptance", tend to obliterate disagreement. ⁸

The implications of the above passages are clear. Although Chamberlain was a case about whether certain books were suitable for kindergarten to grade 2 classrooms, its principles are relevant to religion and conscience. It clearly shows that generally in making decisions, "charter values" have been held by the courts to be important guides for decision makers. The College must accommodate the conscience and beliefs of its members and must not use its own views or those wishes of medical patients to trump them - - such accommodation being limited only by "undue hardship." In most settings this sort of hardship will not be present.

We have seen, above, Benson explains, how some commentators place a "requirement of approval" on the list of things necessary to respect the dignity of the person as a "pick one" [one person's dignity over that of another] approach rather than an "exemption and accommodation" approach. In other words, some people believe that there should only be one way of looking at life and that it's just tough luck for all those who disagree. It is just such an approach the College would be taking if it continues to fail to respect the conscience of its members. It is an approach that I and others believe will not survive legal challenges if and when they arise. The right to dissent and the right not to refer are, as the Canadian Medical Association has recognized, part of the appropriate accommodation of beliefs in Canadian society. Simply put, the Pharmacists are out of step.

Furthermore, in having put together a Code of Ethics that mandates referral and provision of services to which a pharmacist is morally opposed, the College (and those who would try to uphold such approaches) are acting outside of the requirements and protections currently mandated by Canadian law. As such, I strongly recommend that you revise the Code to properly reflect what the Canadian Charter already protects and accord those of us who love our jobs the respect for our dignity and freedom of conscience and religious beliefs that all citizens of this country are supposed to enjoy.

Respectfully submitted,

Cristina Alarcon.
May 3, 2007

Footnotes:

1. See CPhA website Government Briefs: Living and Dying with Dignity- Studying Euthanasia and Assisted Suicide. November 16th, 1994

2. Iglesias Teresa, The Dignity of the Individual. Issues of Bioethics and Law, Pleroma Press, Ireland, 2005.

3. CPSO, Dialogue, Jan/Feb 2006

4. Iain T. Benson. The Freedom of Conscience and Religion in Canada: Challenges and Opportunities, 21^st Emory International Law Review 101 -154 (forthcoming, 2007)

5. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. #50, emphasis added. American Constitutional Law (2nd ed. 1988), at pp. 1245-46,

6. Ibid. at para. 52, citing L. H. Tribe, American Constitutional Law (2nd ed. 1988), at pp. 1245-46,

7. Chamberlain v. Bd. of Trustees of School Dist. No. 36 (Surrey) (Chamberlain), [2002] 4 S.C.R. 710. at 788.

8. Id. at 789 (emphasis added).