JD Supra Business Advisor
May a licensed healthcare professional refuse to treat a patient? Healthcare providers have legal, ethical and professional duties to address a patient’s needs that fall within the provider’s scope of practice. However, are doctors, and other health care personnel, required to treat any and all patients, even if doing so might cost them their lives? While this is an issue that has arisen with the recent Ebola outbreak, it is not a new issue and has been previously addressed.
History of Refusing to Treat
During the early HIV/AIDS era in the 1980s, when there was little known about the disease, there were physicians and other health care workers who refused to treat HIV infected patients. Accordingly, in 1992, the American Medical Association declared in an ethics opinion that “A physician may not ethically refuse to treat a patient whose condition is within the physician’s current realm of competence solely because the patient is seropositive for HIV. Persons who are seropositive should not be subjected to discrimination based on fear or prejudice.” AMA Opinion 9.131 (March 1992, updated June 1996 and June 1998).
Similarly, the American Dental Association stated in its Principles of Ethics and Code of Professional Conduct that, “[a] dentist has a general obligation to provide care to those in need. A decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive based solely on that fact is unethical.” American Dental Association, ADA Principles of Ethics and Code of Professional Conduct III § 4.A.1 (2012).
During the recent Ebola outbreak, healthcare personnel were once again refusing to treat infected patients. Is this acceptable? . . [Full text]
Catholic moral theology has a great way to sift through some of the hardest moral debates.
Reproduced with permission
Two-thousand-fourteen was a contentious year in the Catholic community as debates on a variety of issues divided the faithful. In the 2014 election, 54% of self-described Catholics voted for Republicans, with that number rising to 60% among white Catholics. Healthcare and immigration reform, Common Core education standards, religious liberty, American foreign policy – including the torture debate – and even the normalization of relations with Cuba all provided fodder for often acrimonious food fights among Catholics. . . Catholics who engage one another on these and other issues usually rely on arguments that sound valid on the surface, but which are in fact misunderstandings, if not deliberate distortions, of Catholic teaching. [Full text]
The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.
We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.
The disappearing Article 9 argument
Somewhat frustratingly (at least from the perspective of the writers of a human rights blog!) an argument based around Article 9 of the European Convention – the right to freedom of thought, conscience and religion – was not really dealt with by the Supreme Court, despite having been trailed in the earlier court proceedings. Lady Hale JSC, who wrote the judgment with which the other Supreme Court Justices agreed, described the point as a “distraction” . . . [Full text]
The Canadian Medical Association says it is preparing for the Supreme Court of Canada going either way with its imminent decision on whether or not to legalize euthanasia. But a Vancouver member says the CMA is actually pushing assisted suicide and euthanasia despite the wishes of its membership.
In a front-page article in the National Post, the CMA’s director of ethics, Dr. Jeff Blackmer, is quoted as saying, “We’re preparing for all eventualities and that [lifting the ban] is absolutely one of them.”
According to the Post, part of the CMA’s preparation for “all eventualities” is to survey how medical professions in a half-dozen U.S. states have responded to legalization. “What has worked, what hasn’t worked and how Canada can learn from those experiences,” Blackmer told the Post. Also consulted were countries that have legalized euthanasia and assisted suicide such as the Netherlands, Belgium, and Switzerland.
Blackmer did not report that the CMA consulted any of the vast majority of countries or U.S. states, which still criminalize these two procedures, to see what can be learned from their experience. . .
. . . But not everyone sees the CMA’s process as an even-handed one. The CMA “is really pulling a fast one,” said Will Johnson, a family doctor who is head of the Euthanasia Prevention Coalition of British Columbia. “It’s run by people who want assisted suicide and euthanasia and they are purporting a big change in the views of doctors on this. If they were sincere they would hold a referendum.” [Full text]
The nation’s largest doctors’ group is quietly preparing for possible changes in federal laws governing physician-assisted death, as support among its own members for medical aid in dying grows.
The Canadian Medical Association has consulted medical associations in jurisdictions around the world where euthanasia or assisted suicide is legal to devise possible protocols for Canada if the federal law is changed.
The powerful doctors’ lobby says it would be naïve not to prepare for “all eventualities” as the country awaits a Supreme Court of Canada ruling over whether the federal prohibition outlawing assisted suicide is unconstitutional.
“I think we’re looking at the possibility that the court will refer this back to the lawmakers,” said Dr. Jeff Blackmer, the CMA’s director of ethics.
The Supreme Court could strike down Canada’s ban on assisted suicide and give Parliament one year to craft new legislation, as it did with prostitution.
“They could suggest some framework from the bench that we might want to be in a position to comment on fairly quickly. Or there could be a long period for reflection and committee hearings that we would want to be prepared for,” Blackmer said. “We’re preparing for all eventualities, and that [a lifting of the ban] is absolutely one of them.”
If there is a change in law, Blackmer said doctors opposed to physician-assisted death “will be looking to us for protection of their conscience and their right not to participate.” . . . [Full text]
Family doctors who object to referring patients for abortions should think about switching specialties, the man overseeing the Ontario College of Physicians and Surgeons’ revision of its ethics policy said this week.
Dr. Marc Gabel, a Toronto psychotherapist and past president of the college, told LifeSiteNews on Thursday that if his committee’s proposed revision of the college’s “Professional Obligations and Human Rights” is adopted, then if doctors refuse to refer patients to abortionists, or to doctors willing to prescribe contraceptives, they could face disciplinary action.
“If there were a complaint, every complaint is investigated by the complaint committee,” Dr. Gabel said. The complaint committee could deliver a mild private rebuke or turn over the matter to the disciplinary committee, which Gabel chaired for several years.
According to Dr. Carol Leet, the new president of the college, a doctor found guilty of professional misconduct by the disciplinary committee could face anything from remedial instruction to loss of his or her medical licence. . . [Full text]
Reproduced with permission of the author
Dr. Terence McQuiston, M.D.
Dr. Gabel is not alone in this opinion, but I find it nevertheless appalling. Ever since Hippocrates medical ethics were determined by our profession independently of government legislation (including human rights tribunals). We Canadians stood in judgement at Nuremberg over the German physicians of the Nazi period.
Their defense was that they had done nothing outside of the law (true). However, we took the view that ethics transcend and should inform legislation, not the other way around, and therefore we could hold them to account for their deeds.
Such transcendence of ethics is only possible by the exercise of conscience by all physicians. Granted there may be differences arising from this exercise, but we should do our best to accommodate these differences.
That’s why we permit conscientious objection in wartime. Individual conscience is too precious a part of our social fabric to be casually overridden. The policy defended by Dr. Gabel in effect puts conscience on ice. If euthanasia becomes legal, I for one still won’t do it.
This comment responds to the Medscape article “Doctors opposing draft abortion policy may need to rethink whether family practice is right for them, says CPSO official: Direct referrals a sticking point in Ontario’s human rights policy (17 December, 2014) Dr. Marc Gabel was quoted to the effect that physicians unwilling to provide or facilitate abortion and contraception should not practice family medicine. Administrator
Judges rule against Mary Doogan and Concepta Wood, who brought case objecting to any involvement in abortions
The UK’s supreme court has ruled that two Catholic midwives do not have the right to refuse to help other nurses with abortion procedures or planning.
Upholding an appeal by Greater Glasgow health board, the court found that Mary Doogan, 58, and Concepta Wood, 52, who worked as labour ward co-ordinators at the southern general hospital in Glasgow, did not have a legal right to object to helping with abortions in any way.
As conscientious objectors, the senior midwives have had no direct role in pregnancy terminations, but they argued that they should also be entitled to refuse to delegate, supervise and support staff involved in the procedures or providing care to patients during the process.
Reproductive rights campaigners were concerned that a decision by the court of session in Edinburgh in favour of the women’s case last year could have wide-ranging implications for the way the NHS dealt with other health staff who opposed abortions on religious grounds. . . [Full text]
The Catholic Register
Catholic doctors who won’t perform abortions or provide abortion referrals should leave family medicine, says an official of the College of Physicians and Surgeons of Ontario.
“It may well be that you would have to think about whether you can practice family medicine as it is defined in Canada and in most of the Western countries,” said Dr. Marc Gabel, chair of the college’s policy working group reviewing “Professional Obligations and Human Rights.”
The Ontario doctor’s organization released a draft policy Dec. 11 that would require all doctors to provide referrals for abortions, morning-after pills and contraception. The revised policy is in response to evolving obligations under the Ontario Human Rights Code, Gabel said.
There have been no Ontario Human Rights Tribunal decisions against doctors for failing to refer for abortion or contraception.
Gabel said there’s plenty of room for conscientious Catholics in various medical specialties, but a moral objection to abortion and contraception will put family doctors on the wrong side of human rights legislation and current professional practice. . . [Full text]
Catholic midwives Mary Doogan and Connie Wood lose case against being made to supervise other staff carrying out abortions
Two Catholic midwives who refused to take part in any abortion procedures have lost their legal battle to be treated as ‘conscientious objectors’.
The UK’s highest court overturned a previous ruling made in favour of the two midwives, after a Scottish health authority urged it to overturn last year’s decision of the Court of Session, in Edinburgh, in the case of Mary Doogan and Connie Wood.
The ruling is likely to mean that Ms Doogan and Ms Wood will now have to supervise abortions carried out by other staff, as part of their terms of employment, although they will still be free to refuse to carry out the terminations themselves.
The case centres on the scope of the right to conscientious objection under the Abortion Act 1967, which provides that “no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection”. . . [Full text]