Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

Canada

College of Physicians and Surgeons of Saskatchewan

Freedom of conscience and religion

Annotated Extracts and Links

Conscientious Objection (September, 2015)="endnote">Project Annotation [i]
[Full Text]
1.    Purpose

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. This policy is based upon the following principles relating to the physician-patient relationship

  • The fiduciary relationship between a physician and a patient; Project Annotation [ii]
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  • A patient’s right to information about their care. . .
  • Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians;
  • Physicians should not intentionally or unintentionally create barriers to patient care;
  • The College has a responsibility to impose reasonable limits on a physician’s ability to refuse to provide care where those limits are appropriate. There are some circumstances in which there is a legitimate clinical reason or other good legal reason that the patient’s interests should not be accommodated;
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2.    Scope

This policy does not apply to physician-assisted dying or physicians' conscientious objection related to a potential physician-assisted dying. The College recognizes that this is currently an issue which is in a state of development and may be revisited by the College at a later time.Project Annotation[iii]

This policy applies to all other situations in which physicians are providing, or holding themselves out to be providing, health services.Project Annotation [iv]

3.    Definitions

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

4.    Principles

The College of Physicians and Surgeons has an obligation to serve and protect the public interest. The Canadian medical profession as a wholeProject Annotation [v] has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services.Project Annotation [vi]

Physicians have an obligation not to interfere with or obstructProject Annotation [vii] a patient’s right to access legally permissible and publicly-funded health services.Project Annotation [vi]

Physicians have an obligation to provide full and balanced health information, referrals, and health services to their patients in a non-discriminatory fashion.

Physicians have an obligation not to abandon their patients.Project Annotation [viii]

In certain circumstances a physician will have a legitimate clinical reason to refuse to provide a service requested by a patient.

Physicians’ freedom of conscience should be respected.Project Annotation [ix]

Physicians’ exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.Project Annotation [x]

Physicians’ exercise of freedom of conscience to limit the services that they provide to patients should be done in a manner that respects patient dignity, facilitates access to care and protects patient safety.

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.

5.    Obligations

5.1    Taking on new patients

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Where physicians know in advance that they will not provide specific services, but will only arrange for the patient to obtain the necessary information from another source or arrange for the patient to obtain access to a medical treatment from another source (in accordance with paragraphs 5.2 or 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.Project Annotation [xi]

The College expects physicians to proactively maintain an effective plan to meet the requirements of paragraphs 5.2 and 5.3 for the frequently requested services they are unwilling to provide.

5.2    Providing information to patientsProject Annotation [xii]

Physicians must provide their patients with full and balanced health information required to make legally valid, informed choices about medical treatment (e.g., diagnosis, prognosis, and clinically appropriate 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.

The obligation to inform patients may be met by arranging for the patient to obtain the full and balanced health information required to make a legally valid, informed choice about medical treatmentProtject Annotation [xiii] from another source, provided that arrangement is made in a timely fashion and the patient is able to obtain the information without undue delay. That obligation will generally be met by arranging for the patient to meet and discuss the choices of medical treatment with another physician or health care provider who is available and accessible and who can meet these requirements. The physician has the obligation to ensure that an arrangement which does not involve the patient meeting and discussing choices of medical treatment with another physician or health care provider is effective in providing the information required by this paragraph.

Physicians must not provide false, misleading, intentionally confusing, coercive, or materially incomplete information to their patients.Project Annotation [xiv]

All information must be communicated by the physician in a way that is likely to be understood by the patient.

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.

Physicians must not promote their own moral or religious beliefs when interacting with a patient.

5.3    Providing or arranging access to health services

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:

a) make an arrangement for the patient to obtain the full and balanced health information required to make a legally valid, informed choice about medical treatment as outlined in paragraph 5.2; and,

b) make an arrangement that will allow the patient to obtain access to the health service if the patient chooses.Project Annotation [xv],[xvi]

Those obligations will generally be met by arranging for the patient to meet with another physician or other health care provider who is available and accessible and who can either provide the health service or refer that patient to another physician or health care provider who can provide the health service.

If it is not possible to meet the obligations of paragraphs a) or b), the physician must demonstrate why that is not possible and what alternative methods to attempt to meet those obligations will be provided.Project Annnotation [xvii],[xviii]

This obligation does not prevent physicians from refusing to arrange for the patient to obtain access to the health service based upon the physician's clinical judgment that the health service would not be clinically appropriate for the patient. If the physician refuses to arrange for the patient to obtain access to a health service based upon the physician's clinical judgment, the physician should provide the patient with a full explanation for the reason not to do so.

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.

When physicians decline to provide a health service 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.

5.4    Necessary treatments to prevent harm or provide care to patients

Physicians must provide medical treatment for a patient if treatment is necessary to avoid harming the patient's health or well-being. Accordingly:

a) Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even if providing that treatment conflicts with their conscience or religious beliefs.

b) When it is not possible to arrange for another physician or health care provider to provide a necessary treatment without causing a delay that would jeopardize the patient's health or wellbeing, physicians must provide the necessary treatment even if providing that treatment conflicts with their conscience or religious beliefs. 

Physicians must provide medical treatment for a patient within the physician's competency where the  patient's chosen medical treatment must be provided within a limited time to be effective and it is not reasonably possible to arrange for another physician or health care provider to provide that treatment.

Project Annotations

i.    The first draft of this policy was virtually identical to A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons, a coercive policy proposed by an activist group of academics, including a leading euthanasia advocate.  The Associate Registrar of the Saskatchewan College,  who had worked with the group, pushed for its adoption by Colleges across the country.  (See Project Submission to the CPSS [5 March, 2015]) This generated strong opposition in Saskatchewan and forced several revisions of the draft between January and September, 2015.

ii.    The fiduciary relationship between physician and patient is frequently cited as requiring objecting physicians to provide or facilitate services they consider to be harmful. However, the law does not require objecting physicians to do or facilitate what they consider to be contrary to the interests of a patient.  The law requires them to assess that independently and in good faith, using their own judgement, and without becoming a "puppet" by taking direction from anyone else, including the patient. [See Canadian Aero Service Ltd. v. O'Malley, [1974] SCR 592, 1973 CanLII 23 (SCC)at 606; McInerney v MacDonald, [1992] 2 SCR 138, 1992 CanLII 57 (SCC) at 139, 149, 152; United Kingdom, Law Commission, Report No. 350 Fiduciary Duties of Investment Intermediaries (Williams Lea Group for HM Stationery Office,2014) online: Law Commission [UKLCR350] at para 3.53, note 107, citing Selby v Bowie (1863) 8 LT 372, Re Brockbank [1948] Ch 206.]

iii    The first draft of the policy was proposed with the possiblity of the legalization of euthanasia and assisted suicide in mind, with the intention of forcing objecting physicians to facilitate the procedures by referral.

iv    If one accepts the principles and arguments advanced by the policy supporters, there is no reason why it should not apply to euthanasia and assisted suicide if those services are understood to be medical services or health care.  It appears that the strong opposition to the policy forced its proponents to retreat on this point in order to secure passage of the policy in some form. 

v.    The assertion that "the medical profession as a whole" is responsible for ensuring access to health care is taken from the coercive activist policy noted in [i]. Canadian Medical Association statements and remarks by CMA officials since 2016 seem to reflect a different view, rejecting the idea that "the profession as a whole" should be responsible for connecting patients with EAS practitioners and placing the obligation to ensure access on the federal government, society and health systems rather than the medical profession.

vi.    Legality is established by the mere absence of prohibition, and the requirement for legality is superfluous. There is no duty do something illegal, and illegal health services would not be publicly funded. Many health services are not publicly funded, but the coercive elements of the policy apply only to those that are. Thus, public funding alone trumps freedom of conscience in the policy.

vii.    Reflecting the view that the exercise of freedom of conscience by refusing to collaborate in perceived wrongdoing amounts to "interference" or "obstruction."

viii.   A physician does not abandon a patient by offering services the patient does not want (eg. obstetrical care) instead of providing or facilitating a service the patient wants (eg., abortion).

ix.    The statment was included in the first version of the policy that would have compelled physicians unwilling to kill patients or help them commit suicide to facilitate homicide and suicide  by finding a colleauge willing to do so.

x.    "Impede" does not mean frustrate or prevent.  Expanded by "either directly or indirectly," the statement becomes purely subjective.  It can be interpreted to suppress any exercise of freedom of conscience purported to cause even minimal delay or  inconvenience.

xi.  Providing advance notice should help to avoid conflicts between patients seeking a service and physicians unwilling to provide it for reasons of conscience.

xii.    The policy recognizes a key distinction between providing information and providing or facilitating a morally contested service or procedure. It is necessary to balance the desire of a physician to avoid complicity in a wrongful act with the importance of informed decision-making by the patient, which requires that the patient have all of the information relevant for the purpose of choosing a course of treatment. It is necessary to respect both the freedom of conscience of the physician and the freedom and right of the patient to make a fully informed choice. 

xiii.    Physicians are expected to provide information necessary to satisfy the requirements of informed medical decision making, such as prognosis, the treatments or procedures available, benefits and burdens of treatment, risks, etc., or to arrange for the information to be provided by someone else.

xiv.  Reference to the provision of false, misleading, intentionally confusing, coercive, or materially incomplete information is inflammatory and unwarranted.  It is indicative of strong underlying prejudice against objecting physicians.

xv.  It is not clear what is meant by making "an arrangement that will allow the patient to obtain access." This vague formulation reflects the intense controversy during the development of the policy. The Associate Registrar and his supporters were attempting to enact the mandatory referral provision in the coercive activist policy, suppressing freedom of conscience for those unwilling to collaborate in what they consider to be wrongful activities.  They were strongly opposed by the Project and groups representing  objecting physicians.

xvi.    Those opposed to referral will interpret it to mean that they are not obliged to refer patients for morally contested services, and any attempt by the College to coerce or discipline them is likely to be met with a lawsuit.

xvii.  Since the meaning of the obligation in 5.3b is doubtful, it is doubtful that this provision can be enforced.  Moreover, the legal onus of accommodation lies on the College.  If a physician demonstrates that the purported obligation the College is attempting to enforce impinges upon the exercise of freedom of conscience or religion, the College is obliged to prove that its policy is demonstrably justified in a free and democratic society. 

xviii.    In contrast, the policy on the exercise of freedom of conscience in relation to euthanasia and assisted suicide (below) is simpler and acceptable.  It reflects the widespread intuitive and rational insight that it is unacceptable to force physicians to do what they believe to be gravely wrong, or to arrange for it to be done by someone else ("effective referral").  The convoluted and ambiguous text of Conscientious Objection is the result of an ideological attempt to suppress this insight.

For more detailed commentary, see:


Physician Assisted Dying (November, 2015)
[Full Text]
Foundational Principles

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3)    Respect for physician values: Within the bounds of existing standards of practice, and subject to the expectations in this document and the obligation to practise without discrimination as required by the CMA Code of Ethics and human rights legislation, physicians can follow their conscience when deciding whether or not to provide physician-assisted dying.

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1.    Conscientious Objection

A physician who declines to provide physician-assisted dying must not abandon a patient who makes this request; the physician has a duty to treat the patient with dignity and respect. The physician is expected to provide sufficient information and resources to enable the patient to make his/her own informed choice and access all options for care.Project Annotation [i] This means arranging timely access to another physician or resources, or offering the patient information and advice about all the medical options available.Project Annotation [ii] Physicians must not provide false, misleading, intentionally confusing, coercive or materially incomplete information,Project Annotation [iii] and the physician's communication and behaviour must not be demeaning to the patient or to the patient's beliefs, lifestyle choices or values. The obligation to inform patients may be met by delegating this communication to another competent individual for whom the physician is responsible.Project Annotation [iv],[v]

Project Annotations

i.    The policy recognizes an important distinction between providing information and providing or facilitating a morally contested service or procedure.  Physicians are not expected to facilitate euthanasia or assisted suicide by referral if they believe that doing so makes them parties to wrongful acts.

ii.    Physicians are expected to provide information necessary to satisfy the requirements of informed medical decision making, such as prognosis, the treatments or procedures available, benefits and burdens of treatment, risks, etc.  Only if a physician is unwilling to provide this information is an offer of "timely access" to another physician or resource required.  Offering timely access may be achieved in various ways.

iii.    As in the policy Conscientious Objection, reference to the provision of false, misleading, intentionally confusing, coercive, or materially incomplete information is inflammatory and unwarranted.  It is indicative of strong underlying prejudice against objecting physicians.

iv.    The conscientious objection provision of the policy on euthanasia and assisted suicide reflects the widespread intuitive and rational insight that it is unacceptable to force someone to do what he believes to be gravely wrong, or to arrange for it to be done by someone else ("effective referral").

v.    The College created two different conscientious objection policies because it was confident that it was politically possible to suppress freedom of conscience for physicians unwilling to provide or collaborate in morally contested services like abortion and contraception, but afraid to suppress freedom of conscience for physicians unwilling to kill or collaborate in killing  their patients.