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
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
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
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
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
6. Recalling an earlier case (Canson
Enterprises Ltd. v. Boughton & Co.  3 S.C.R. 534)
7. Quoting LeBel, J. in Henderson
v. Johnston,  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