Physician, heal thyself: the potential crisis of conscience in Canadian medicine

What if your faith in doctors having conscience was shaken?

The Globe and Mail
Reproduced with permission

Gabrielle Horne*

“I’m really sorry,” I said, picking the magnifying glass off the floor and checking it wasn’t cracked. “I think it’s okay.”

It was my third day on the witness stand, testifying against doctors from the hospital where I still worked. I couldn’t read the tiny numbers on the document disclosing how much my colleagues were paid, and the hospital lawyer had offered it to me, to end the theatre.

“He’s just softening you up before cross-examination,” my lawyer had said with a wry smile, standing at the podium.

Afterward, I wondered why I’d apologized, in a full courtroom, to this man who had taken a wrecking ball to my life over the previous 10 years. Then it occurred to me: to apologize is a sign of a conscience.

Doctors are expected to have one. Their job is to heal the sick and save lives, and that role evokes an image and expectation of beneficence – doing only good. Doctors invest in that image when they espouse a code of conduct descended from the Hippocratic oath: “I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrongdoing.” Patients also invest in that image and expectation. When illness strikes, they must often put their lives, their confidence and their most vulnerable selves in the hands of doctors they barely know. The expectation of conscience is at the core of the medical pact.

But what if your faith in doctors having conscience was shaken? [Full text]

Photo by Matthew Henry from Burst

Forced Referral and Freedom of Religion vs Freedom of Conscience

Without freedom of conscience our free democracy would not exist

The Epoch Times

Shawn Whatley, MD*

A recent court decision in Ontario missed the mark when it ignored the impact forced referral has on freedom of conscience.

On May 15, the Ontario appeals court ruled that doctors must give patients a referral for euthanasia, abortion, and other contentious issues, regardless of what an individual doctor thinks about them.

The court battle started after the medical regulator in Ontario, the College of Physicians and Surgeons of Ontario (CPSO), created a policy that forced doctors to refer for procedures, regardless of doctors’ deeply held convictions of religion or conscience. Doctors who refuse would risk being fined and/or losing their license to practice medicine. . . [Full text]

23 States Sue Feds to Block HHS “Conscience” Rule Permitting Refusal of Care

Non Profit Quarterly

Ruth McCambridge

Twenty-three states joined in a suit filed on May 21st to block a new federal regulation known as the Protecting Statutory Conscience Rights in Health Care rule. Published yesterday in the Federal Register, it would give health care providers, insurers, and employers—as well as a wide range of others, such as ambulance drivers, receptionists, and customer service representatives at insurance companies—the right to refuse to provide or pay for medical services that violate their religious or moral beliefs. These services would include abortion and other reproductive services, as well as assisted suicide. Additionally, any health care provider would risk federal funding if they do not respect the right of these workers to deny service. . . [Full text]

Some Quebec doctors still resisting assisted dying, commission chair says

Montreal Gazette

Aaron Derfel

One out of two doctors who have turned down requests for medical assistance in dying by terminally-ill patients have probably done so without justification under the Quebec law, says the head of the province’s commission on end-of-life care.

“It’s 50-50,” Dr. Michel Bureau told the Montreal Gazette in an interview. “Are there some doctors who are too strict in the application of the criteria? We have observed this (attitude) in several cases.”

Despite the progress made in implementing the so-called dying with dignity law, some physicians continue to resist carrying out assisted dying, although in fewer numbers than when the legislation came into effect on Dec. 10, 2015, Bureau added. . . . [Full text]

HHS Final Conscience Rule and Protected Employees

Hall Render Killian Heath & Lyman PC

Robin M. Sheridan and Lindsey Croasdale

On May 2, 2019, the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights (“OCR”) announced the issuance of the final conscience rule, which prohibits discrimination of individuals on the basis of their exercise of conscience in HHS-funded programs. The rule has not yet been published in the Federal Register, but HHS has released an unofficial version of the document. This rule will be effective 60 days after is it published in the Federal Register. . . [Full text]

Conscientious objection must be respectful, pope tells health care workers

Crux

Junno Arocho Esteves

ROME – When doctors, nurses and health care workers conscientiously object to a procedure to protect the life and dignity of their patients, they must do so respectfully, Pope Francis said.

Without respect, conscientious objection can be “a reason for contempt or pride” that would impede dialogue “with those who hold different positions” and mask the true reason of that objection, which is to the seek the patient’s well-being, the pope told a group of Catholic health care workers May 17 at the Vatican. . . [Full text]

With Ontario court’s ruling on doctors, the revolution continues

There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

National Post

Barry W. Bussey*

How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors’ consciences was a “no-brainer.” The law, history, and basic human decency cried out: “Accommodate the physician!” Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. And it did so wrapped up in language that purported to support vulnerable patients.

The decision against physicians who, because of conscience, cannot assist in the intentional killing of a human being, pre- or post-birth, is a travesty of justice. It is wrong. It is wrong morally, ethically and legally. . . [Full Text]

Ontario Court of Appeal supports ‘effective referral’ for morally contested procedures, including euthanasia


Court unanimously affirms right of state to compel participation in homicide, suicide, etc.

News Release

Protection of Conscience Project

On 15 May, 2019, three judges of the Ontario Court of Appeal unanimously upheld a lower court ruling that physicians can be forced to facilitate procedures they find morally objectionable, including euthanasia and assisted suicide, by connecting patients with willing providers (“effective referral”).

The Court of Appeal judgement concerned a 2018 decision by the Ontario Divisional Court that had been appealed by the Christian Medical and Dental Society of Canada and others. The litigation was a response to a compulsory “effective referral” policy imposed by Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario.

The Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance jointly intervened at trial and in the appeal in support of freedom of conscience.

The Divisional Court and the Court of Appeal both acknowledged the joint intervention, but neither considered the arguments it proposed because the case was decided solely on the basis of freedom of religion claims. The Court of Appeal held that the evidence at trial was “insufficient to support an analysis of freedom of conscience.”

“To the extent the individual appellants raise issues of conscience,” said the Court, “they are inextricably grounded in their religious beliefs,” so that, “at its core, the appellants’ claim is grounded in freedom of religion.”[para. 85]

Since the arguments in the Project’s intervention were not addressed at trial or in the appeal, Project Administrator Sean Murphy believes that they are unaffected by the decision.

“The focus of the Court was on religiously-motivated refusal to participate in perceived wrongdoing,” said Murphy. “The analytical framework proposed in the joint intervention could easily have been adapted and applied to that particular form of the exercise of religious freedom. The evidentiary record would have been sufficient for that purpose.”

“However, the Court did not do this, so the arguments still stand, and they can be raised again in another appropriate case.”

The decision demonstrates that the judges uncritically adopted the view of the College that euthanasia, assisted suicide, abortion, contraception, sterilization, sex change surgery, etc. are acceptable forms of medical treatment or health care. They further noted that abortion, euthanasia and assisted suicide “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.” [para. 123]. On the other hand, they gave no weight to contrary views held by the plaintiffs.

The Court of Appeal also supported the College’s assertion that objecting physicians unwilling to comply with the demand for effective referral could change their scope of practice and move into fields like “sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders . . . obesity medicine, aviation examinations, travel medicine . . . administrative medicine or surgical assistance.”[para. 71]

The appellants have 60 days to consider and appeal to the Supreme Court of Canada.

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Contact: Sean Murphy, Administrator
Protection of Conscience Project
Email: protection@consciencelaws.org

Statement on the Denial of Conscientious Objection from the “Effective Referral” Mandate

News Release

Catholic Civil Rights League

Toronto, ON May 15, 2019 – The Catholic Civil Rights League (CCRL) is disappointed with the decision released today of the Ontario Court of Appeal, in CMDS et al v. CPSO.

In its ruling, the unanimous three member panel of the Court of Appeal, comprised of Chief Justice George Strathy, and Appellate Justices Sarah Pepall and J. Michal Fairburn upheld a previous decision from Ontario’s Divisional Court, from January 31, 2018. That ruling denied conscientious exemption from the “effective referral” mandate of the College of Physicians and Surgeons of Ontario (CPSO) for doctors who morally objected to participating in objectionable procedures such as assisted suicide, gender re-assignment surgeries, or abortion.

By way of background, individual Catholic and Christian doctors and several organizations had challenged the CPSO, which over the course of the past four years changed its professional guidelines on professional conduct, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation.

Ontario is the only provincial or territorial jurisdiction which has made demands to this extent with its doctors. Other jurisdictions have elected to recognize such conscientious objections, or have provided a means to allow other transfers of a patient’s file, without infringing such rights.

In 2018, the Ontario Divisional Court had ruled in favour of the CPSO, despite finding that the religious freedom of doctors had been infringed. The Applicants appealed.

At the appeal, the CCRL, the Faith and Freedom Alliance (FFA) and the Protection of Conscience Project (PCP), had argued in a joint submission as an intervener that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. We argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own consciences, without adequate justification.

Our intervention wished to expand the arguments into the area of conscience protection, in addition to religious freedoms asserted by the appellants under s. 2a of the Charter, but those submissions were not pursued by the Court of Appeal.

The Court of Appeal accepted that there was an infringement on the s. 2a rights of the appellants, but that the infringement was justified as a reasonable limit on those rights (para. 187).

The Court of Appeal decision clarified that “non-compliance with the [CPSO] Policies is not an act of misconduct” under the College’s professional misconduct regulations (para. 16), but could be used as evidence of falling below a professional standard if a misconduct allegation were brought (para. 17).

The Court accepted that referrals could be made in a variety of ways, or even by a staff member as a triage engagement (paras. 24-27).

The decision also referred to the availability of other practice arrangements endorsed by the CPSO, to allow doctors to “avoid” the demand for an effective referral, such as working in a hospital setting, or a group practice, if others were prepared to engage in the objectionable treatment, or make the requested referral (paras. 176-187).

The acceptance of such arrangements in the Court’s decision presented a dichotomy. In recognizing the infringement of s. 2a rights, several proposed workarounds were accepted, such as working in a hospital context, or in a group practice where others would be willing to make the referral, or having employees make the referral. Other jurisdictions have avoided the original effective referral demand, or have allowed for conscientious objections outright, which a majority of Ontario doctors supported.

The Court was not persuaded that a demand to change practice or specialty areas constituted a sufficient intrusion into a doctor’s existing practice. That may be a challenge for the typical cancer specialist, or cardiologist, who may be confronted more often with a demand for medical assistance in dying, especially in the absence of available palliative care options. While not underestimating the individual sacrifices that may be required (paras. 186, 187), the court’s answer suggested that it was perhaps time to change one’s specialty, or submit.

The CCRL continues to support Christian or other doctors who have raised serious concerns over the “effective referral” mandate of the CPSO, and look forward to continuing discussions on how best to serve their interests.

Click here to view the written factum of the CCRL, FFA, and PCP, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.

We submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. The Ontario Medical Association (OMA) likewise opposed the “effective referral” regime, as representatives of Ontario doctors.

Ontario doctors should be persuaded that it may be time to re-visit these demands with a future Council of the CPSO, for which hopefully conscientious physicians will seek to pursue.

Sometimes change is needed to be undertaken by the governed to secure justice.

The caricature of the conscientiously objecting physician

Objecting doctors are the bad guys, obstructing care.

How will disciplining conscientious doctors or driving them from the profession improve health care?

Physicians’ Alliance Against Euthanasia

Catherine Ferrier

Weary physicianCanadian doctors who object to directly causing the death of their patients, once the near-totality of the profession, have since the enactment of laws permitting “medical assistance in dying” suddenly become outliers. Polling data is unclear, polls are often biased, and there is no doubt that the euthanasia lobby had the ear of media, opinion leaders and politicians long before we knew what they were up to. Be that as it may, we are now told that euthanasia/MAiD is an accepted ‘medical treatment’ that must be provided to those who request it. Many provincial medical colleges, though not requiring doctors to euthanize patients themselves, do expect, to different degrees, that we facilitate their being euthanized by someone else. . . [Full text]