Canadian Medical Association and Referral for Morally Contested Procedures
20 October, 2022
For over fifty years the Canadian Medical Association (CMA) has rejected demands that physicians should be compelled to make referrals for procedures to which they object for reasons of conscience, though they should provide information necessary to enable informed medical decision-making, and help patients contact other physicians or health care providers, though not specifically providers of contested services. The great majority of CMA members seem to support this position. However, it are unaware of the history behind it, which is outlined in this paper. and that the Association has never explored or developed the foundations of its commitment to physician freedom of conscience, even in the face of increasingly strident claims culminating in demands that physicians should be forced to refer patients for euthanasia and assisted suicide.
1970: The first CMA “conscience clause”
In 1970 the CMA adopted a major revision of its Code of Ethics. It included the following statement, obviously made necessary by the reform of the abortion law the year before:
Personal morality 15. An ethical physician will, when his personal morality prevents him from recommending some form of therapy which might benefit the patient, acquaint the patient with these factors.1
Abortion was not mentioned, however, because the ethics committee believed abortion was “like any other surgical procedure.”2
Reaffirmation of abortion provision and freedom of conscience
The following year the CMA General Council declared that abortion could be justified on “non-medical social grounds.” It approved nine further resolutions concerning abortion, two of particular significance for freedom of conscience in health care. The first articulated the reasoning behind the protection of conscience provision in the Code of Ethics:
4. That faced with a request for an abortion, a physician whose moral or religious beliefs prevent him from recommending and/or performing this procedure should so inform the patient so that she may consult
another physician. (emphasis added)
7. That physicians or other health personnel should not be required to participate in the termination of a pregnancy; and that a patient should not be forced to have a pregnancy terminated (emphasis added).3
Escalation of demand for abortion
Within a year of the liberalization of the abortion law, the Royal Columbian Hospital in New Westminster, BC, reported a "critical bed shortage" due to the "marked increase in the number of abortions performed."4 The number of abortions rose from about 300 in 11 years5 to over 11,000 in one year.6 This reflected the difference between therapeutic abortions performed to preserve the life of the mother and elective abortions provided for “non-medical – social, psycho-social or socioeconomic – reasons.”7 Dramatic yearly increases in abortion rates continued for a decade. The broadened grounds for abortion and continuing increases in the abortion rate6,8,9 increased the likelihood of conscientious objection to the procedure and of conflict between patients and physicians. It also brought raging controversy.
Pressure on health care workers
In 1974 the CMA Director of Communications disclosed that the Association was being inundated with
letters about abortion from physicians and the public.7 One physician noted that members of the Association had “strongly opposing opinions” about the morality of abortion, and warned that “it will be impossible to find a compromise” that would satisfy all of them.10
Delegates at the 1976 Alberta Medical Association annual general meeting saw a need to reaffirm its policy that “no pressure be applied against physicians or hospitals that do not conduct abortions,”11 which suggests that such pressures were being felt. Certainly, there is evidence of this in the professional literature of the period from the United States, the United Kingdom and Italy. The Protection of Conscience Project has identified over 60 articles or letters in professional journals published between 1970 and 1979 that indicate that collisions were occurring between those demanding the provision of abortion and those refusing to provide them.12,13
1977-78: The first referral controversy
At the General Council in 1977, the
ethics committee recommended that the protection of conscience provision be amended by adding a requirement that an objecting physician should advise patients of their right to seek another opinion. This was met with a counter-proposal from the floor that they should be required to “advise the patient of other sources of assistance.”14
According to a later statement by the CMA Director of Communications, abortion was the “principle [sic] area of concern” when the Council debated the proposal.15 The debate was not reported in the contemporaneous Canadian Medical Association Journal (CMAJ) account of the meeting, which described it as “uncontroversial” in comparison to other general councils, with only “mild discussion” of contentious topics.16 However, a 1978 CMAJ article suggests that the debate was long and emotional.17
Changing times, compassion, ethics, and professionalism
In support of the counter-proposal to “advise the patient of other sources of assistance,”proponents asserted that “principles and philosophies” were changing “and the profession should adjust itself accordingly.” It was argued that “compassion is the basis of ethics” and of professionalism and medical practice, and that the profession had a responsibility to patients “who should not be abandoned in any regard.” Hence, a physician who disagreed with “a particular form of therapy” must not “abandon” the patient.”14
Conflict about mandatory referral
The amendment was adopted, and a serious conflict erupted almost immediately. It was widely interpreted to mean that objecting physicians were obliged to refer patients to an abortion provider, notwithstanding the assurance of the Director of Communications that imposing such an obligation “would be contrary to the intent of the Ethics Committee that proposed the change.” He noted that the Association encouraged physicians to apply “unbiased professional judgement” in each case and “avoid the simplistic role of dispenser of a service desired or thought to be desired, by the patient.”15
Claims of abandonment, neutrality vs. complicity and conscience
The General Secretary defended the change on the grounds that physicians must not “abandon the patient or impede her from obtaining help from other sources of assistance.18 The accusation of “abandonment” was strenuously rejected as at least an exaggeration and the illusion of professional or moral neutrality ridiculed:
. . .we are told to bring "unbiased professional judgement to bear on each individual case." How can there be an unbiased position in this situation? The only stance that could approach an unbiased position is to have no moral conviction and assume "the simplistic role of dispenser of a service", a position we are told to avoid. . . . .19
The point, of course, was that both physicians who provide or refer for abortion and those object to doing so act upon convictions about the morality of the procedure. The claim that objecting physicians are "biased" and non-objecting physicians are not is a pretence often used to conceal what Project Advisor Prof. J. Budzisewski calls "bad-faith authoritarianism - a dishonest way of advancing a moral view by pretending to have no moral view."20
objecting physician insisted that “[n]o patient has the right to anything other than what a physician can in his conscience do,” and protested that it was “intolerable that the CMA is telling me I may not follow my conscience in this most serious matter.”21 Even physicians who appear to have been willing to provide or refer for abortions feared that their objecting colleagues would be pressured to become morally complicit in what they considered to be murder.22
Attempts at clarification did not help. The revised policy continued to be highly divisive, one physician noting that it was generating “confusion and dismay” within the Association.22 The Newfoundland Medical Association passed a resolution to the effect that revised wording was unacceptable “because many physicians might have moral and religious objections to passing their patients on as well as to recommending abortions themselves.” The College of Physicians and Surgeons of Ontario also expressed reservations about the
provision.17 Even Doctors for Repeal of the Abortion Law protested the new provision and clarification, though their concern was that it might cause delays in providing the service.23
Mandatory referral rejected
The controversy took up much of the time of the CMA ethics committee and was brought to the meeting of the General Council in June, 1978. One of the physicians who had proposed the 1977 revision defended it by attacking physicians who refused to facilitate abortion by referral:
“It’s like a father who throws his fifteen-year-old daughter out of the house when she’s pregnant, because he’s a strict and bigoted moralist and pregnancy outside marriage is outside his religion.”17
However, the 1977 amendment was struck out and the previous wording restored.24
1988: Responding to R v Morgentaler
The CMA revisited its policies on abortion after the Supreme Court of Canada struck down all legal restrictions on the procedure in 1988. The protection of conscience provision in the Code of Ethics remained unchanged, and
the Association stressed that there should be no discrimination against non-objecting or objecting physicians, “particularly for doctors training in obstetrics and gynecology, and anesthesia.”25 It appears that this policy is no longer publicly available on the CMA website.
2000-2003: No ethical obligation to do what is believed to be wrong
CMA Director of Ethics, Canadian Psychiatric Association
Dr. John R. Williams was Director of Ethics for the World Medical Association from 2003 to 2006 and the author of the World Medical Association Medical Ethics Manual.26 In 2000, when he was CMA Director of Ethics, he advised the Administrator of the Protection of Conscience Project that the CMA did not require objecting physicians to refer for abortion. He explained that the CMA had once had a policy to that effect, but had dropped it because there was “no ethical consensus to support it.”27 This was clearly a brief reference to the short-lived 1977 revision of the Code of Ethics.
Two years later, speaking of physicians who decline to provide or to refer for
contraceptives for religious reasons, Dr. Williams pithily expressed the ethical basis for the CMA position. He said, “[They're] under no obligation to do something that they feel is wrong.”28
Similarly, a 2003 annotation of the CMA Code of Ethics for the Canadian Psychiatric Association (CPA), commenting on the protection of conscience provision, stated the obvious: “A code of ethics can never require someone to carry out what he believes to be an immoral act.”29 It appears that this policy statement is no longer publicly available on the CPA website
2006-2008: Policy reaffirmed
Referral for abortion
In a guest 2006 editorial in the CMAJ30 and in a response to criticism of the editorial,31 two law professors asserted that objecting physicians have an obligation to refer patients for abortion. Dr. Jeff Blackmer, then CMA Executive Director of Ethics, reaffirmed Association policy that referral was not required:
However, you should not interfere in any way with this patient's right to obtain the abortion. At the
patient's request, you should also indicate alternative sources where she might obtain a referral. This is in keeping with the obligation spelled out in the CMA policy: “There should be no delay in the provision of abortion services.”32
This was generally understood to mean that objecting physicians should provide or direct patients to general information that would help them to contact other physicians, such as a directory of local clinics. It would then be up to the patient to locate someone willing to provide an abortion, consistent with the 1971 AGC resolution. The CMAJ declared the subject closed.
The negative response to the editorial from the medical profession convinced Professor Jocelyn Downie, one of the authors of the 2006 CMAJ guest editorial, that policy reform by the CMA was unlikely, so she turned her attention to provincial regulatory authorities to persuade them to use the law to override the CMA Code of Ethics.33
Ontario Human Rights Commission attacks physician freedom of conscience
Two years later, the Ontario Human Rights Commission
(OHRC) tried to convince the College of Physicians and Surgeons of Ontario to suppress physician freedom of conscience and religion because “doctors, as providers of services that are not religious in nature, must essentially ‘check their personal views at the door’ in providing medical care.”34
The College produced a draft document to that effect, but the 25,000 member Ontario Medical Association asked that the document be withdrawn, stating, “We believe that it should never be professional misconduct for an Ontarian physician to act in accordance with his or her religious or moral beliefs.”35,36
A generally hostile response forced the College to delete the most objectionable language in the draft policy, which became Physicians and the Ontario Human Rights Code. Dr. Bonnie Cham, Chair of the CMA Ethics Committee, reaffirmed the Associations support for "the identifiable minority" of physicians who do not agree with abortion, and observed that there is still "a minority who would not
refer" for abortion.37
2011: Referral for euthanasia, assisted suicide
Royal Society of Canada panel
Persistent claims that physicians should be compelled to refer for abortion in the decades following the Morgentaler decision laid the groundwork for a 2011 recommendation from a Royal Society of Canada Expert Panel that objecting physicians should be forced to refer patients for euthanasia and assisted suicide.38
Only two of the panel members were physicians;39 four of the six, including one of the physicians, had previously advocated euthanasia and assisted suicide.40,41,42,43
One of the six was 2006 CMAJ guest editorialist, Professor Downie. Notwithstanding the rejection of her 2006 claims that objecting physicians were obliged to refer patients for abortion, she and her expert colleagues explained that because it was agreed that objecting health care professionals can be forced to refer for “reproductive health services” they should be forced to refer for euthanasia. Hence, the panel recommended that if “religious or moral conscience” prevents health care professionals from providing euthanasia or assisted suicide, “they are duty bound to refer their patients to a health care professional who will.”38
2012-2014: Euthanasia, assisted suicide, 'neutrality’ and conscience
For over forty years the CMA had resisted demands that physicians who object to abortion for reasons of conscience should be forced to refer patients for the procedure. However, despite the persistent pressure reflected in the 2006 CMAJ guest editorial, the 2008 attempt by the Ontario Human Rights Commission to suppress physician freedom of conscience and the Royal Society panel’s demand for referral for euthanasia and assisted suicide, it does not appear that the Association explored or developed the foundation of its commitment to protect physician freedom of conscience.
Carter v Canada (Attorney General)
The issue suddenly came to the fore in the case of Carter v. Canada struck down the prohibition of physician assisted suicide and euthanasia.44 When the CMA Annual General Council convened in August, 2013, an appeal of the Carter decision was in progress, and a euthanasia bill had been introduced in the Quebec legislature. Council proceedings reflected “deep divisions within the medical community.”45 The Council did, however, resolve to
support “the right of any physician to exercise conscientious objection when faced with a request for medical aid in dying.” (DM 5-22)46
CMA: From opposition to "neutrality" on euthanasia/assisted suicide
CMA leaders spent much of 2014 studying euthanasia and assisted suicide (EAS), and in August presented the General Council with a resolution affirming CMA support for both physicians unwilling to participate in the procedures, and those willing to do so, should they be legalized.47 This was explained by CMA leaders as a change from opposition to EAS to "neutrality" and support for physician freedom of conscience.48,49,50 CMA President Dr. Chris Simpson, a Board member involved in the process, later called this "a sea change."51 However, the motion did not reflect a considered view of the role of freedom of conscience in medical practice, nor an appreciation of the impact the CMA change of EAS policy would have on those opposed to euthanasia and assisted suicide.
Unnoticed at the time was the fact that the resolution’s promise to support physicians providing legal euthanasia and assisted suicide was unlimited. It was not conditional upon patients having to meet certain criteria to qualify, such as decision-making capacity or having a terminal illness. This unconditional guarantee of support for legal euthanasia and assisted suicide was repeated in the CMA’s intervention at the Supreme Court of Canada in the Carter
case. The CMA conveyed the message that it would support physicians who decided to participate in legal euthanasia or assisted suicide, no matter how broadly the Court or legislatures might cast the rules governing the procedures.52,53
Policy change and potential conflicts of conscience
When the executive revised the policy in December, it formally approved physician assisted suicide and euthanasia as “end of life care” and promised to support patient access to “the full spectrum” of such care, subject only to the law. The policy did not exclude minors, the incompetent or the mentally ill, nor did it indicate that the procedures should be provided only to the terminally ill or those with uncontrollable pain. It referred directly only persons suffering from “incurable diseases.”54 Consistent with their August resolution and later intervention at the Supreme Court of Canada, CMA Directors thus formally committed the Association to support euthanasia and assisted suicide not only for competent adults, but for any patient group and for any
reason approved by the courts or legislatures.
From a protection of conscience perspective, the first practical problem with this was that actual support for euthanasia and assisted suicide within the medical profession — to the extent that it had been evaluated at all — was highly volatile. Roughly contemporaneous optimistic estimates suggested that 6% to 29% of physicians were willing to provide the procedures, depending upon the condition of the patient; 63% to 78% would refuse, again dependent upon the condition of the patient. Of physicians willing to consider providing the services, the number dropped by almost 50% in the case of non-terminal illness, and by almost 80% in the case of purely psychological suffering (i.e., in the absence of pain).55 Thus, by promising unconditional support for legal EAS, the CMA leadership exposed a large number of physicians to potential demands that could generate serious conflicts of conscience.
The second problem was that the policy is not neutral.56 By classifying euthanasia and assisted suicide
as "end of life care," the CMA executive effectively made participation in euthanasia and assisted suicide normative for the medical profession. Once the Supreme Court of Canada ordered legalization of the procedures,57 the refusal to provide assisted suicide and euthanasia in the circumstances set out in Carter became an exception to professional obligations that had to be justified or excused. This is why, since Carter, public discourse has largely centred on whether or under what circumstances physicians and institutions should be allowed to refuse to provide or participate in homicide and suicide.
Certainly, the new policy also stated that the CMA supported the right of physicians to “follow their conscience” when deciding whether or not to provide euthanasia, and that physicians “should not be compelled to participate,” a broader term that could encompass referral. On the other hand, it characterized the protection of conscience provision in the Code of Ethics (2004 paragraph 12)
as defending only “physician autonomy,” not physician moral agency and personal integrity. In addition, it added a qualifying statement: “However, there should be no undue delay in the provision of end of life care.” This can be understood to justify limiting or suppressing freedom of conscience for objecting physicians in order to ensure patient access to the services.
2015: The Carter maelstrom
CMA in the vortex
When the Supreme Court ruled in Carter, the CMA was ready to proceed with implementing euthanasia and assisted suicide, but it was quite unprepared mount a cogent, articulate and persuasive defence of physician freedom of conscience.58 This disadvantage was compounded when the federal government did virtually nothing for five months following the ruling, then called (and lost) an election, and left the CMA other stakeholders scrambling to develop policies responsive to the Carter ruling without any direction as to what changes would be made to the criminal law.
The result was a policy and
regulatory maelstrom that lasted several months. During this time, CMA officials, struggling to develop practice standards and guidelines in response to Carter, were also caught between activists demanding that physicians be compelled to refer for the procedures, and physicians and physician groups, galvanized by the Carter ruling, adamantly opposed to providing or facilitating euthanasia or assisted suicide. Under the circumstances, it is not surprising that there was some waffling by CMA officials on the issue of referral.58
70% of physicians oppose referral requirement
By the time the Annual General Council convened in August, 2015, only about 19% of CMA members believed that physicians should be required to refer patients to someone who would provide euthanasia or assisted suicide. Almost 70% were opposed to the idea. About 31% thought objecting physicians should not be require to do anything, but about 27% believed that they should provide information and support, or refer to a third party who could provide information.55
Council ultimately approved a resolution later adopted by the CMA Board of Directors. It stated that physicians were not obliged to fulfill requests for or participate in euthanasia or assisted suicide, and should not be discriminated against for refusing to do so. It required objecting physicians to provide patients with complete information on “all options,” and advise them “how they can access any separate central information, counseling, and referral service.”59
This was a development of the basic framework provided by the Code of Ethics and other CMA policy documents, and it arguably reflected the actual intention of the AGC that had approved the controversial and short-lived 1977 amendment to the Code. However, it seems that AGC delegates were uninformed about this. The resolution approved was a largely pragmatic response guided by a general notion of "striking a balance" between patient and physician autonomy or rights. It was specific to euthanasia and assisted suicide, and it
was unsupported by principled ethical or philosophical rationale reflecting an understanding of the role of conscience in medical practice. It is unlikely that more than this could have been achieved in the circumstances.
2016: The CMA and “effective referral”
The first CMA statement addressing the subject of physician freedom of conscience at a foundational level was a 2016 submission to the College of Physicians and Surgeons of Ontario60 in response to its demand that objecting physicians facilitate euthanasia and assisted suicide by an “effective referral” (i.e., "a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency"61).
Physicians are moral agents
Important elements of the CMA statement were later incorporated into the CMA Medical Assistance in Dying policy. The first and most important element is the recognition of physicians as moral agents.
It is in fact in a patient's best interests and in the public interest for physicians to act
as moral agents, and not as technicians or service providers devoid of moral judgement. At a time when some feel that we are seeing increasingly problematic behaviours, and what some view as a crisis in professionalism, medical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.
Access to services
The statement does not neglect the interests of patients seeking access to euthanasia and assisted suicide, noting that the CMA wishes to protect physician freedom of conscience “without in any way impeding or delaying patient access.” However, it insists that this can be accomplished by adopting a two-pronged strategy: by asking physicians to fulfil “a duty that is widely morally acceptable,” yet allows them “ to act as moral agents,” and by requiring the community to accept its responsibility to ensure access, “rather than placing the
burden of finding services solely on individual physicians.”
The issue of complicity
The third significant point is recognition that the central concern of objecting physicians is their individual moral responsibility to avoid complicity in perceived wrongdoing. This is sometimes misconstrued or misrepresented as a desire to control the conduct of their patients, and it is too often passed over because it can be a painful reminder of the essential point of disagreement between objecting physicians and non-objecting colleagues.
Non-discrimination in relation to conscience
Fourth, the statement recognizes that the exercise of freedom of conscience is a fundamental freedom for everyone, not just for those whose moral judgement conforms to a dominant viewpoint, or to one’s own. This is implied in its discussion of effective referral. Some physicians who refuse to provide assisted suicide or euthanasia have no objection to referring a patient to a colleague willing to provide the service. Others find referral “categorically morally unacceptable” because
they believe that referral makes them complicit in grave wrongdoing. The statement characterizes a demand for “effective referral” as illicit discrimination, not a solution, because it “respects the conscience of some, but not others.”
It is the CMA's strongly held position that there is no legitimate justification to respect one notion of conscience . . . the CMA [seeks] to articulate a duty that achieves an ethical balance between conscientious objection and patient access in a way that respects differences of conscience. It is the CMA's position that the only way to authentically respect conscience is to respect differences of conscience.
Fiduciary duty and moral integrity
Finally, citing the Supreme Court of Canada, the statement also emphasizes the fiduciary nature of the patient-physician relationship: the physician’s obligation “to protect and further their patients' best interests.” However, it adds that physicians’ fiduciary obligations do not “in any way” entail an obligation to violate their own moral
Access vs. conscience: a false dichotomy
CMA President Dr. Cindy Forbes and Vice President Dr. Jeff Blackmer vigorously defended the Association’s approach in a letter to a parliamentary committee studying implementation of the Carter ruling:
The Special Joint Committee was incorrectly informed that the CMA “has essentially said there should be a requirement to refer.” This statement is categorically untrue and misrepresents the CMA’s recommendations. . .
Based on the experiences in other jurisdictions, it is the CMA’s position that access will not be impeded based on the proportion of physicians that may choose not to participate based on conscience. We must re-emphasize that the arguments being advanced to suggest otherwise are unnecessarily creating conflict and forcing legislators and regulators to take a decision based on a false dichotomy.62
In a later submission to another parliamentary committee the CMA emphasized the need to “respect the personal convictions of health care providers” and accommodation of both
patients seeking euthanasia/assisted suicide and physicians unwilling to participate in the procedures for reasons of conscience. In particular, the submission noted “From the CMA’s significant consultation with our membership, it is clear that physicians who are comfortable providing referrals strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not.”63
2017: The CMA and euthanasia/assisted suicide
Current CMA policy Medical Assistance in Dying states that objecting physicians "are not required to provide it, or to otherwise participate in it, or to refer the patient to a physician or a medical administrator who will provide assistance in dying to the patient." It also appears to put the onus on the state "to implement an easily accessible mechanism to which patients can have direct access" to obtain the services so that physicians can adhere to their moral commitments.64
These improvements deserve recognition and thanks, but they
were late in coming. The articulation of physician freedom of conscience found in current policy on the procedures dates from May, 2017 - more than three years after the Carter decision. Recall, moreover, that mandatory referral for euthanasia and assisted suicide was recommended by the Royal Society panel of experts in 2011.38 The CMA cited the Royal Society report in its 2014 application to intervene in Carter - but only because the report dismissed the risk of a "slippery slope" should euthanasia and assisted suicide be legalized.65 It took the CMA over four years to respond to the experts' tendentious claim that referral is an acceptable form of accommodation, and almost seven years to reject their demand that physicians should be forced to refer for euthanasia and assisted suicide. There was arguably no need for the CMA to respond to the experts’ recommendation for referral in 2011; the procedures were still illegal, and the Association was then opposed to physician
participation altogether, so the issue of referral was moot. That was certainly not the case in 2014, when the CMA intervened in Carter.
In any case, in Medical Assistance in Dying one finds the principles enunciated in the submission to the CPSO developed and applied. The document addresses the circumstances of both patients and physicians in a more or less integrated manner, appropriately reflecting the nature of the subject. For analytical purposes, they are dealt with here separately.
Physicians as moral agents
The moral agency of physicians is implicitly acknowledged and supported by the CMA goal of “creating an environment in which practitioners are able to adhere to their moral commitments.” The policy is meant to ensure “protection of physicians' freedom of conscience (or moral integrity) in a way that respects differences of conscience.”
Consistent with this goal, the CMA states that it supports “the right of all physicians to follow their conscience” whether that takes the
form of “conscientious participation” or “conscientious objection,” whether their decisions follow from “reasons of moral commitments to patients and for any other reasons of conscience.”
The sensitive issue of complicity in perceived wrongdoing is not discussed, but the CMA addresses it indirectly by insisting that physicians must be free to exercise freedom of conscience in relation to “any or all aspects” of the procedures, which encompass eligibility assessment and patient decision-making. Reflecting various forms of complicity, physicians are not required “to provide . . . or to otherwise participate . . . or to refer the patient” to a practitioner who will provide the services.
As in its 2016 submission to the CPSO, here the CMA insists that physicians’ moral integrity must be protected by ensuring that they are “able to follow their conscience without discrimination,” including discrimination in “general employment or contract opportunities” or in “evaluations and training advancement” in learning environments.
Finally, consistent its CPSO submission, the CMA asserts that the community has an obligation “to enable physicians to adhere to [their] moral commitments” by implementing “an easily accessible mechanism” to facilitate patient access to services.
Granted the critical importance of fostering the moral agency and integrity of physicians, the CMA acknowledges that exercise of freedom of conscience is not unlimited. Physicians must “never abandon or discriminate against [patients]”, nor “impede or block access,” nor make acceptance or retention of patients conditional upon their agreement not to request certain services.
The policy does not articulate a rationale for the limits it sets on the exercise of physician freedom of conscience, but it is readily discerned in the document’s references to patients. These are premised upon recognition of the centrality of the nature of the human person and human dignity.
patients, the CMA asserts that “persons have inherent dignity regardless of their circumstances,” that “services ought to be delivered, and processes and treatments ought to be applied, in ways that strive to preserve and enhance dignity,” and that it is critical to “maintain the integrity of personhood.” For these reasons, patients must be “free to make informed choices and autonomous decisions about their bodily integrity, their personal aims and their care that are consistent with their personal values and beliefs.”
Equality of patients and physicians
Much of Medical Assistance in Dying is necessarily concerned with the application of ethical considerations and practical matters specific to the delivery of the services. However, its strong defence of the moral agency of physicians and its determined assertion of the need to respect and support the inherent dignity of patients illuminates another foundational principle: the essential equality patients and physicians as human
The document considers the moral agency and moral integrity of physicians — but not their dignity; it emphasizes the dignity and bodily integrity of patients — but not their moral agency or moral integrity. In fact, everything that the CMA says in Medical Assistance in Dying about the moral agency and integrity of physicians applies equally to patients, and everything it says about the dignity of patients applies equally to physicians.
This explains why, on the one hand, physicians are told that they may refuse to provide or participate in any way, but may not “impede or block access,” while, on the other, patients have the right to request the service, but this “does not compel individual physicians to provide it.”
With these foundational elements in place, the guidelines for the conduct of physicians who object to euthanasia can be better understood and more accurately interpreted. The first point to note is that “patient” includes a patient’s agent
or designated medical decision maker.
Second, the requirement that physicians “should inform their patients of the fact and implications of their conscientious objection” helps patients and physicians who have different views arrange their relationship in a way that accommodates the moral agency of each.
Physicians are not obliged to fulfill a patient’s request for euthanasia or assisted suicide by providing or otherwise participating in it, or to facilitate it by referring the patient to someone who will do so. Provision, participation and referral are all possible, but not obligatory, thus preserving the moral integrity of all physicians, regardless of their position on the issue. This is fully consistent with the CMA submission to the CPSO and its warning against illicit discrimination.
Apart from this, objecting physicians are obliged to respond to a patient request. This reflects the need to respect the person and dignity of patients by acknowledging their requests, taking them
seriously, and providing information that they need to exercise their moral agency and give effect to their decisions. It explains the requirement to provide complete information, including information about how to access an appropriate health care network.
The expectation that objecting physicians will facilitate a direct transfer of care upon the request of the patient cannot be understood to require objecting physicians to facilitate euthanasia or assisted suicide by initiating either a transfer of care by finding a willing provider. This would make no sense in light of the policy’s statement that referral is not required, since physician-initiated direct transfer of care would entail the same kind of complicity entailed by referral.
It follows that the transfer of care envisioned in the case of an objecting physician who also finds referral unacceptable must be patient-initiated, not physician-initiated. The transfer would be made after the patient — not the physician — has
identified an individual or institution. The transfer would be required even if the person or institution selected will or is likely to provide euthanasia or assisted suicide. On the one hand, this safeguards the integrity of objecting physicians because they do not provide the impetus in favour of the intervention, nor do they participate in identifying a willing provider. On the other, it enables patients to exercise and give effect to their moral agency; they are entitled to find a different physician willing to manage all or part of their care, and an objecting physician cannot prevent them from doing so.
Similarly, the expectation that objecting physicians will provide the clinical records reflects the fact that the information in the records belongs to the patients. They are entitled to direct its disclosure to serve their purpose, and a physician who has expressed disagreement with that purpose is not entitled to do more. The situation is analogous to that of a trustee who is
obliged to transfer an inheritance to an heir who has reached the age of majority, even if the trustee believes the heir will not make good use of it.
2018: CMA Code of Ethics and Professionalism
The CMA circulated a preliminary draft of a revision of the Association’s Code of Ethics for feedback in the spring of 2018. It included a proposal about referral that was markedly out of step with the Association’s position:
Inform the patient when your deeply held values may influence the recommendation, provision or practice of any medical procedure or intervention that the patient needs or requests, but never abandon the patient. The duty of non-abandonment requires providing the patient with complete information on all clinical options available and, when necessary, a formal referral or a direct transfer of care. It also includes the transfer of the patient’s records when requested by the patient. [emphasis added]66
The Protection of
Conscience Project was among the respondents. While applauding other aspects of the draft, the Project was highly critical of this provision:
This reverses the CMA's longstanding position against mandatory referral. It contradicts recently developed CMA policy, and it is inconsistent with a significant CMA position statement concerning freedom of conscience. Finally, it imposes a form of servitude that is offensive to human dignity, violates freedom of conscience and illicitly discriminates against physicians in a manner the CMA itself has rejected.67
Final version: referral not required
The requirement for referral by objecting physicians was withdrawn, and the relevant sections of the Code of Ethics and Professionalism ultimately adopted by the Association reflect the traditional position of the CMA:
3. Act according to your conscience and respect differences of conscience among your colleagues; however, meet your duty of non-abandonment to the patient by always acknowledging and responding to the patient’s medical concerns and requests whatever your moral commitments may be.
4. Inform the patient when your moral commitments may influence your recommendation concerning provision of, or practice of any medical procedure or intervention as it pertains to the patient’s needs or requests.
8. Provide whatever appropriate assistance you can to any person who needs emergency medical care.
11. Empower the patient to make informed decisions regarding their health by communicating with and helping the patient (or, where appropriate,
their substitute decision-maker) navigate reasonable therapeutic options to determine the best course of action consistent with their goals of care; communicate with and help the patient assess material risks and benefits before consenting to any treatment or intervention.
41. Provide opinions consistent with the current and widely accepted views of the profession when interpreting scientific knowledge to the public; clearly indicate when you present an opinion that is contrary to the accepted views of the profession.68
Particularly when read in conjunction with the withdrawal of the draft referral requirement, these provisions support physicians who refuse to collaborate in or facilitate procedures to which they object for reasons of conscience and/or professional judgement, while recognizing that they have other obligations to patients and colleagues.
“Professionalism”: a note of caution
On the other hand, caution is warranted with respect to the emphasis on “professionalism”
introduced into the new Code. Some prominent academics assert that “professionalism” demands that physicians must give such priority to patient “interests” (as defined by the patient or others) that physicians should be willing to serve those interests even by doing what they believe to be wrong — even if that means killing patients or at least collaborating in their homicide or suicide.69 This view of “professionalism” is sometimes associated with the venerable concept of self-sacrifice: “the rather old-fashioned notion of putting others before oneself.”70
However, in the tradition of Martin Luther King Jr., Gandhi and Canadian physician Francis Scrimger, V.C.,71 while self-sacrifice might entail going to jail or even the loss of one’s life, it has never been understood to include the sacrifice of one’s integrity. To abandon one’s moral or ethical convictions in order to serve others is prostitution, not professionalism.72 It is thus important to note that a claim that “professional expectations”
overrides physician freedom of conscience would contradict the emphasis placed on moral agency, integrity and conscience in the Code and CMA policy statements. Indeed, the Code explicitly states that it is “not exhaustive” and acknowledges the interdependence of the virtues of an ethical physician.
Further, claims about “professional expectations” are not neutral. Physicians may disagree profoundly about whether participation in a given morally contested procedure exemplifies professional commitment or professional corruption; euthanasia is only the most recent and obvious example. Requiring conformity to a dominant theory of professionalism that subordinates freedom of conscience to purportedly neutral “professional” obligations reflects an authoritarian mindset that will generate illicit discrimination and exacerbate rather than resolve conflict within the profession.
Avoiding moral partisanship: the need for a principled approach
Like its predecessors, the CMA’s Code of Ethics and Professionalism does not
provide detailed guidance about the exercise of freedom of conscience by physicians; the relevant provisions are expressed in general rather than procedure-specific terms. In contrast, CMA statements about the exercise of physician freedom of conscience have been associated with controversies about specific procedures, notably abortion and euthanasia. This has unfortunate consequences.
The nature and importance of freedom of conscience are frequently obscured by partisan debates about the acceptability of particular procedures. Opposing sides in such debates may well come to see conscience policies merely as strategic weapons to be turned to ideological advantage. Conscience policies developed in the midst of such controversies may foster and entrench a morally partisan viewpoint, whether the viewpoint is that of a dominant majority or a powerful minority.
The academic work of Professor Carolyn McLeod of provides an especially obvious example of this kind of moral partisanship in bioethics. In 2006 she admitted that compulsory referral for abortion by objecting physicians was not a compromise, but would put objecting physicians “at serious risk of losing moral integrity through self-betrayal,” with profound consequences for their “psychological health and agency.”73 However, by 2008, concerned that “the pro-life side” was winning the intellectual argument on mandatory referral, she proposed a new argument “to ensure that [physicians] do not get protections for refusal to refer.” She again admitted that requiring effective referral was not a compromise. She nonetheless insisted that objecting physicians should be forced to refer for abortion because, she said, “abortions are morally permissible.” Objecting physicians “ought not to be able to follow their consciences when the voice of their conscience misleads
Five years later, she and Lori Kantymir insisted that “referrals are not appropriate when the objection itself is morally justified”: that “conscientious objections by healthcare professionals that are morally justified should not be followed up by referrals.” However, they insisted upon compulsory referral for most abortions because — in their view — most abortions are morally acceptable — though not sex-selective abortions (emphasis added).75 By this time she and two colleagues had proposed a model conscientious objection policy demanding mandatory referral by objecting physicians for all services delivered through Canada’s publicly funded health care system (which includes abortion).76 Consistent with this, they later supported demands for “effective referral” by objecting physicians for euthanasia and assisted suicide.77,78
Moral partisanship of this kind is clearly strategic, a continuation of "the abortion wars" by proxy that one author has described (though from the opposite perspective) as "an attempt at cultural conquest."70 It is opposed to civic friendship, which ought to ground and sustains political community, and it is inconsistent with the best traditions and aspirations of liberal democracy.
Thus, when developing freedom of conscience policies it is essential to avoid entanglement in controversies about the acceptability of morally contested procedures. Instead, a broad and principled approach is necessary, one that recognizes that freedom of conscience serves the fundamental good and dignity of the physician as a human person, not merely professional autonomy or independence.
A stand-alone protection of conscience policy
Assuming one avoids entanglement in disputes about the acceptability of procedures/interventions, as well as an authoritarian pretence of “neutrality” (including claims of “unbiased professionalism”15,19,20 and the moral imprimatur of "public funding"76), a serviceable protection of conscience policy must include a number of basic features:
a) protection of the moral
agency and integrity of physicians by ensuring that they are not compelled to do what they believe to be wrong, including referral;
b) non-discrimination concerning physician judgements of conscience, both as to the acceptability of a procedure/intervention and decisions about participation or non-participation;
c) an expectation that physicians will provide patients with timely notice of deeply held beliefs that may influence their recommendation or provision of procedures/interventions the patient may request;
d) an expectation that physicians will provide information necessary to enable a patient to make informed decisions and exercise moral agency;
e) an expectation that physicians will provide information to enable patient access to other physicians, health care providers or the local, regional or provincial health care system, though not specifically with providers of contested services.
These basic features are included in the revised CMA Medical Assistance in Dying policy and referenced in the CMA submission to the CPSO on effective referral. A protection of conscience policy that is generally acceptable in relation to euthanasia and assisted suicide ought to be applicable in other situations, notwithstanding partisan moral viewpoints about particular procedures. There is no principled reason to suggest otherwise.
In sum, informed by careful reflection about the role and importance of freedom of conscience in health care, a serviceable stand-alone policy on physician freedom of conscience could be drafted by drawing on past CMA statements, key elements of its submission to the CPSO on effective referral, and the revised CMA Medical Assistance in Dying policy.67 Key elements of such a policy have already been considered and agreed upon and are consistent with a half-century of CMA policy development.