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Protection of Conscience Project

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Service, not Servitude
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Submission to the Canadian Medical Association

Re: 2018 Revision of the CMA Code of Ethics

2 April, 2018


V.    Reconciling obligations
Avoiding entanglement: the need for a broad and principled approach

V.1    For almost fifty years, the CMA has repeatedly expressed its commitment to support and protect of physician freedom of conscience. However, until quite recently, no attempt was made to clearly and systematically articulate the foundations of that commitment.

V.2    Further, though the protection of conscience provision in the Code of Ethics has, from the beginning, been expressed in general rather than procedure-specific terms, all of the statements issued by the CMA concerning freedom of conscience, including the most recent, have been a result of controversies associated with specific procedures, notably abortion and euthanasia.

V.3    A significant shortcoming of procedure-specific policy-making and legislation is that it is not responsive to the challenges created by technological developments in medicine. For example, a policy or law that prevents coercion with respect to abortion does not apply to artificial reproduction, eugenic practices or human experimentation.

V.4    Moreover, when policies are developed in the midst of controversies about specific procedures, the issue of freedom of conscience is frequently obscured by partisan debates about the acceptability of the procedures themselves. Opposing sides in such debates may well come to see such policies merely as strategic weapons to be turned to ideological advantage. Carolyn McLeod’s campaign "to ensure that [physicians] do not get protections for refusal to refer" is a classic example (I.11-I.12).

V.5    This is why conscience policies developed in relation to specific procedures tend to foster and entrench a morally partisan viewpoint, whether the viewpoint is that of a dominant majority or a powerful minority. It tends to lead to the kind of discrimination rejected by the CMA (III.18), either by allowing conscientious objection to some procedures, but not others, or by imposing discriminatory limits on the exercise of freedom of conscience: by, for example, allowing physicians to refuse to refer for euthanasia, but forcing them to refer for artificial reproduction.

V.6    For all of these reasons, it is preferable to take a broad and principled approach that keeps the focus on the nature and importance of freedom of conscience, avoiding entanglement in controversies about the acceptability of morally contested procedures.

Avoiding authoritarian "neutrality"

V.7    It is equally important to reject attempts to impose authoritarian solutions masked by a pretence of neutrality. For example, a theory of social contract professionalism that has attained dogmatic status may be applied by those in power to "resolve" moral issues by subordinating them to purportedly neutral "professional" obligations. This approach is exemplified by Udo Schuklenk and Julian Savulecu, who assert that "professionalism" precludes conscientious objection.1,2

V.8    Notice that, from 1970 until 2004, the CMA Code of Ethics claimed to delineate "the standard of ethical behaviour expected of Canadian physicians" and that the Code and other CMA policies could "provide a common ethical framework for Canadian physicians." Reference to "a common ethical framework" has disappeared in the 2018 Revision, which now refers only to "a platform for a shared purpose and identity" and "a common understanding of what it means to be a medical professional and the profession’s shared goals." (App "A" Ref 009). Further, the 2018 Revision states that physicians act with integrity only if they act "in accordance with professional expectations." (App. "A" Ref 019)

V.9    Taken together, these changes could be taken to mean that "professional expectations" override the moral agency and moral integrity of physicians. This is not a neutral claim, and it would contradict the emphasis place on moral agency and integrity elsewhere in the Revision and in CMA policy statements on effective referral and euthanasia. Further, 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. Hence, an attempt to regulate the exercise of freedom of conscience by demanding conformity to a theory of professionalism will generate illicit discrimination and exacerbate rather than resolve conflict within the profession.

A stand-alone protection of conscience policy

V.10    Assuming one avoids entanglement in disputes about the acceptability of procedures/interventions, as well as authoritarian "neutrality," 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 allow patient access to other physicians, health care providers or the local, regional or provincial health care system.

A stand-alone protection of conscience policy in the CMA’s own words

V.11    These basic features are included in the revised CMA Medical Assistance in Dying policy (Part IV) and referenced in the CMA submission to the CPSO on effective referral (III.14-21). A protection of conscience policy that is generally acceptable in relation to euthanasia and assisted suicide ought to be applicable in other situations. There is no principled reason to suggest otherwise.

V.12    Thus, a serviceable stand-alone policy on physician freedom of conscience can 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. This ought to be fully acceptable to the Association, since the elements of the policy have already been considered and agreed upon. Part VI of this submission demonstrates how this can be done.

Notes

1.  Schuklenk, U. Why medical professionals have no moral claim to conscientious objection accommodation in liberal democracies. J Med Ethics 2017;43:234-240.

2.  Savulescu J, Schuklenk U. Doctors Have no Right to Refuse Medical Assistance in Dying, Abortion or Contraception. Bioethics (2016) Vol. 31 No. 3. doi:10.1111/bioe.12288

 

 

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