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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Letter to the Editor, Journal of Obstetrics and Gynaecology

5 April, 2004

Rebecca J. Cook and Bernard M. Dickens state, "Physicians who feel entitled to subordinate their patient's desire for well-being to the service of their own personal morality or conscience should not practise clinical medicine"1 (Emphasis added).

The statement is unsupported by their own legal references, and it has little to recommend it as an ordering principle in the practice of medicine.

In their original article2 and in their response to a letter from Dr. Howard Bright3the authors purport to ground their advice in law and in ethics. But the only case cited to support the claim that courts continue to demand referral is a 23 year old case from the Alberta Court of Appeal. Moreover, referral was not even discussed in Zimmer,4 which addressed the failure to obtain informed consent to silver nitrate sterilization, and failure to provide adequate follow-up care.

Their second legal claim, that the fiduciary duties of physicians require them to subordinate their conscientious convictions to those of their patients, rests upon a more recent Supreme Court of Canada case. But McInerney5 had absolutely nothing to do with conflicts of conscience. It concerned the duty of a physician to release a patient's medical records upon request. While the court noted that the fiduciary relationship between physician and patient obliged the physician to disclose the records, the nature of fiduciary relationships was not discussed at length.

Moreover, the Supreme Court ruled that fiduciary relationships and obligations are "shaped by the demands of the situation"; they are not governed by a "fixed set of rules and principles". Mr. Justice La Forest, writing for the court, stated,

"A physician-patient relationship may properly be described as'fiduciary' for some purposes, but not for others."6

In other words, the physician patient relationship is fiduciary for the purpose of disclosing patient records, but that does not imply it is fiduciary for the purpose of suppressing the conscientious convictions of the physician.

Finally, the court in McInerney accepted the characterization of the physician-patient relationship as "the same . . . as that which exists in equity between a parent and his child, a man and his wife, an attorney and his client, a confessor and his penitent, and a guardian and his ward."7 Yet no one has ever suggested that the fiduciary obligations of parents, husbands, attorneys, confessors, and guardians require them to sacrifice their own integrity to the "desires" of others.

Neither case cited by Cook and Dickens supports their claims, and McInerney arguably contradicts them. What of their reference to 'transcendent ethical duties'?

Dr. John R. Williams is now Director of the Ethics Unit of the World Medical Association. He was Director of Ethics for the Canadian Medical Association in 2000, when he advised the Protection of Conscience Project that the CMA's policy of mandatory referral for abortion was dropped because there was no ethical consensus to support it.8

As to the conclusions they draw from monozygotic twinning and cloning, Cook and Dickens fail to understand that these processes prove nothing about the individuality of the original zygote. If one zygote becomes two through the process of regulation, it does not mean that the first zygote was not an individual.9, 10 More to the point, it was clear from the context of Dr. Bright's letter that he was putting in issue the moral significance of the existence of the early human embryo, something quite distinct from the vitality of sperm or ova. The distinction cannot be evaded by the meticulous refinements suggested by Cook and Dickens.

The beliefs of many conscientious objectors, while 'personal' in one sense, are actually shared with tens of thousands, or even hundreds of thousands or hundreds of millions of people, living and dead, who form part of great religious, philosophical and moral traditions. If theirs is a 'private' morality, the morality that Cook and Dickens are attempting to impose is not less so. Nor can its imposition be justified because it is achieved by "building momentum" rather than "lobbying", the distinction between which the authors leave unclear.

One hopes that future contributions to the Journal on the subject of freedom of conscience will have more of substance to offer its readers.

Sean Murphy, Administrator
Protection of Conscience Project


1. Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can, February, 2004; 26(2)112

2. Cook RJ, Dickens BM, Access to emergency contraception. J. Obstet Gynaecol Can 2003;25 (11):914-6

3. Bright, H. Access to emergency contraception [letter]. J. Obstet Gynaecol Can 2004; 26(2)111

4. Zimmer v. Ringrose (1981), 124 Dominion Law Reports (3d) 215 (Alberta Court of Appeal)

5. McInerney v. MacDonald (1992), 93 Dominion Law Reports (4th) 415 (Supreme Court of Canada)

6. Recalling an earlier case (Canson Enterprises Ltd. v. Boughton & Co. [1991] 3 S.C.R. 534)

7. Quoting LeBel, J. in Henderson v. Johnston, [1956] O.R. 789 at p. 799.

8. Telephone conversation between Dr. John R. Williams and the Project Administrator, April, 2000

9. O'Rahilly R, Muller F. Human embryology and teratology. New York: Wiley-Liss; 2001. p.37

10. Carlson BM. Human embryology and developmental biology. St. Louis: Mosby;1999. p. 49


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