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Protection of Conscience Project

www.consciencelaws.org

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


VI.    In the CMA's words: a policy on physician freedom of conscience
Introduction

VI.1    Since 1970, the CMA's Code of Ethics has taken a general approach, leaving detailed discussion of particular issues to CMA policy statements.  The 2018 Revision includes more explanatory material than has been customary, and significantly develops some statements made in the 2004 version (such as sections concerning privacy/confidentiality and responsibilities to oneself). 

VI.2    The model proposed here is consistent with the approach taken in the 2018 Revision and its predecessors.  2018 Revision C3 remains a general statement, and a supplementary policy statement drawn from CMA sources provides more detailed guidance. 

VI.3    The 2018 Revision C3 and supplementary policy proposed below are comprised almost entirely of verbatim or only slightly modified passages from important CMA position statements, as can be seen from the colour coding of the text.  Virtually everything here has already been approved by the CMA.

VI.4    What is proposed here is limited to what is known to be acceptable to the CMA, and presented almost entirely in the CMA's words.  A more comprehensive policy drawn from CMA and CMPA sources ("CMA Plus") is provided in Part VII.

VI.5    The exercise of freedom of conscience is presumed to occur within the ethical framework reflected in other parts of the Code, such as the fundamental commitments discussed in 2018 Revision Section B.


Sources
   

2018 Draft CMA Code of Ethics

   

CMA Policy: Medical Assistance in Dying

   

CMA Submission to the College of Physicians and Surgeons of Ontario

CMA Code of Ethics (2018)

C3.    Give patients timely notice of deeply held beliefs or values that may influence the recommendation, provision or practice of any medical procedure or intervention that the patient needs or requests. You are not obligated to fulfil a patient's request for procedures/interventions to which you object for reasons of conscience, nor to participate in providing them by referral to a provider. However, you must respond to requests by providing patients with complete information on all treatment options available, including the procedure/intervention to which you object, and advise them how to access a provincial or regional health care network or equivalent to obtain further information, referral or services. Upon the request of the patient, you must transfer patient records to a physician or institution identified by the patient, while continuing to provide other aspects of care, or transfer the care of the patient to a physician or institution identified by the patient, continuing other aspects of care until the transfer has been effected. You must not impede or block access to procedures/interventions to which you object, and you must not make acceptance or retention of patients conditional upon their agreement not to request such procedures/interventions.

Supplementary Guidelines

Physicians' ethical norms and duties, arising from long-standing traditions that entail moral commitments to preserve and protect life, have not changed. The practice of medicine is an inescapably moral enterprise, and physicians exercise moral agency in making every treatment decision, whether or not they advert to the fact.

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, we 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.

Hence, the CMA supports the right of all physicians to follow their conscience when deciding whether or not to provide or otherwise participate in procedures or interventions requested by patients.

Foundational considerations

Respect for freedom of conscience: The CMA believes that physicians must be able to follow their conscience without discrimination when deciding whether or not to provide or participate in procedures/interventions requested by patients. The CMA supports physicians who, for reasons of moral commitments to patients and for any other reasons of conscience, provide or facilitate legal procedures/interventions or refuse to do so. To enable physicians to adhere to such moral commitments without causing undue delay for patients requesting procedures/interventions, health systems will need to implement  mechanisms that allow patients to easily obtain direct access to them.  It is a responsibility of the community to ensure access, rather than placing the burden of finding services solely on individual physicians. Further, the CMA believes that physicians' general employment or contract opportunities should not be influenced by their conscientious decisions to participate in, or not participate in, the delivery of procedures/interventions. The right of patients to seek procedures/interventions does not compel individual physicians to provide or facilitate them. Learners should be equally free to follow their conscience without risk to their evaluations and training advancement.

Fiduciary obligations: The physician as fiduciary has long been ensconced in ethics and law on the view that the patient-physician relationship hinges on the physician's duty to act, among other fiduciary duties, to protect and further their patients' best interests. The fiduciary nature of the patient-physician relationship has been described as "the most fundamental characteristic of the doctor-patient relationship" by Madame Justice McLachlin in Norberg v. Wynrib (1992).However, the physician's fiduciary obligation does not in any way mean that the physician must violate her moral integrity, in such a way that referral does for some objecting physicians.

Additional considerations: physician duties

1. Duty of non-abandonment: Physicians have an obligation to respond to patient requests for procedures/interventions, regardless of how their moral commitment is expressed. Patients should never be abandoned and must always be supported by their physician and other members of their care team. There should be no undue delay in providing access to procedures/interventions, either from a clinical, system or facility perspective.

ADDRESSING ADHERENCE TO MORAL COMMITMENTS

CMA's position on conscientious participation and conscientious objection aims to harmonize two legitimate considerations: (1) effective patient access to a legally permissible medical service and (2) protection of physicians' freedom of conscience (or moral integrity) in a way that respects differences of conscience.

For the majority of physicians who will choose not to provide a procedure/intervention referral is entirely morally acceptable; it is not a violation of their conscience. For others, referral is categorically morally unacceptable; it implies forced participation procedurally that may be connected to, or make them complicit in, what they deem to be a morally abhorrent act. In other words, to make referral mandatory 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 judgement of conscience (such as the right not to participate in assisted dying), while wholly discounting another because one may not agree with it.

 

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