Physicians and the Ontario Human Rights Code:
Ontario Human Rights Commission attempts to suppress freedom of conscience

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Discrimination on the basis of ethical orientation

Canadian Family Physician
Vol. 54, No. 12, December 2008, pp.1679 - 1680
Reproduced with permission

Dr Diane Kelsall's insightful editorial "Whose right?"1 highlights some of the challenges associated with the policy proposed by the College of Physicians and Surgeons of Ontario (CPSO) relating to restriction of "freedom of conscience" for clinicians. It is troubling enough that the Ontario Human Rights Commission (OHRC) perceives it has the clinical perspicacity as well as the jurisdictional authority to arbitrate in complex matters relating to physician-patient relationships; it is even more perplexing that the CPSO would entertain such an infringement on their professional membership.

Patient autonomy is not the only consideration when making decisions in clinical practice. Refusal to accede to patient requests, for example, occurs when doctors refuse to participate in potentially harmful or unnecessary interventions patients feel they require. The intrusive policy by the OHRC demands the oxymoronic juxtaposition of best clinical judgment and disposing of that judgment if patients disagree.

Furthermore, the policy of coercing ethical doctors to do what they feel is unethical-whether by threat of lawsuits or disciplinary action-displays supreme intolerance of diverse views and choice precisely at a time in Canada when human rights commissions are demanding more tolerance, heralding choice, and proclaiming respect for diversity. In other words, it seems physicians are entitled to express their opinions to patients only as long as they say the "right" things according to the OHRC grid, and can enjoy freedom of choice only as long as they choose the OHRC-approved clinical courses of action.

In view of the potential threat to physician autonomy that such a policy poses, I would be most grateful for some clarification on the following points from the CPSO and the OHRC regarding the concept of restricting "freedom of conscience" for doctors:

1) Some faith and cultural groups consider the steadfast denial by physicians to perform certain procedures, such as female circumcision or female feticide, to be discrimination based on their faith or race. According to the OHRC, are physicians compelled to perform or refer for the procedures that some patients demand on the basis of their religious or cultural beliefs?

2) In a 1985 ruling, Supreme Court Chief Justice Brian Dickson stated, "Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the State or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free."2 Is denying freedom in Canada to a specific group not inherently discriminatory? Does the OHRC code supersede principles and admonitions from the Supreme Court?

3) The Canadian Medical Association's CMA Code of Ethics explicitly exhorts health professionals to "Resist any influence or interference that could undermine your integrity."3 Abandoning our conscience to participate in or facilitate decisions we consider unethical might undermine ourintegrity.4 Does the OHRC code supersede the CMA Code of Ethics?

4) Coercing ethical doctors to do what they feel is unethical violates' "freedom of conscience," which is a basic human right according to the United Nations' Universal Declaration of Human Rights.5 Does the OHRC code supersede the United Nations' declaration?

5) From the vantage point of a primary doctor, to refer a patient to another practitioner who is expected to proceed in a way the primary doctor feels is damaging to that patient is to be complicit in harm-a violation of the "Do no harm" principle of the Hippocratic Oath. Does the OHRC code supersede the Hippocratic Oath?

6) Finally, attempts to coerce a physician to do something thathe or she feels is ethically inappropriate under threat of legal or disciplinary action might also be considered "discrimination on the basis of ethical orientation." To whom do physicians file discrimination complaints against the OHRC and the CPSO for violating the basic human rights of doctors?

In summary, a draconian authoritarian policy of coercing clinicians to set aside their professional judgment and accede to patient demands is not in the best interests of physicians or patients. If "freedom of conscience" is restricted, doctors will experience ethical distress when placed in situations where their considered clinical decisions contravene the wishes of their patients.4 Such an intolerant policy, engineered by individuals and commissioners far removed from the practice of clinical medicine, displays a lack of respect for the competence, ability, and integrity of health professionals, and has the potential to adversely affect physician morale and the physician-patient relationship.  The medical community, including the Colleges of Physicians and Surgeons throughout Canada, should not condone such intolerance.

References

1.  Kelsall D. Whose right? [Editorial]. Can Fam Physician 2008;54:1353.[Free Full Text]

2.  Dickson J. R v. Big M Drug Mart Ltd, (1985), 18 D.L.R. (4th) 321 at p. 354, 18 C.C.C. (3d) 385, [1985] 1 S.C.R. 295.

3.  Canadian Medical Association, Fundamental responsibilities: article 7. CMA code of ethics (update 2004). Ottawa, ON: Canadian Medical Association; 2004. Available from: www.cpsns.ns.ca/cma-ethics-2004.pdf. Accessed 2008 Nov 7.

4.  Genuis SJ. Dismembering the ethical physician. Postgrad Med J 2006;82(966):233-8.[Abstract/Free Full Text]

5.  General Assembly of the United Nations. The universal declaration of human rights. Article 18. Geneva, Switz: United Nations; 1948. Available from: www.un.org/Overview/rights.html. Accessed 2008 Nov 7.