Will they be hounded out of their profession?
For years bioethicists of a utilitarian cast have argued that conscientious objection has no place in medicine. Now Canadian courts are beginning to put their stamp of approval on the extinction of doctors’ right to refuse to kill their patients.
The Superior Court of Justice Division Court of Ontario ruled this week that if doctors are unwilling to perform legal actions, they should find another job.
A group of five doctors and three professional organizations were contesting a policy issued by Ontario’s medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), arguing it infringed their right to freedom of religion and conscience under Canada’s Charter of Rights and Freedoms.
However, Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel:
“the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.
“Those who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.”
At issue is the policy of “effective referral”. A doctor who objects to participating in euthanasia cannot be forced to do it. But he is expected to pass the patient to another doctor who will. The CPSO argues that effective referral is necessary “to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.”
Without the policy of effective referral, equitable access would be “compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services,” Justice Herman Wilton-Siegel wrote. People in remote communities might request euthanasia. If their doctor refused, they might suffer needlessly and taxpayers would have to foot the bill to subsidise the refusnik’s conscience.
It is remarkable how closely Justice Wilton-Siegel’s text hews to the arguments of bioethicists who have been chipping away at the right to conscientious objection for years.
In 2005 American legal scholar Alta Charo described conscientious objection as “an unfettered right to personal autonomy while holding monopolistic control over a public good … an abuse of the public trust—all the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest’.
In 2006 Oxford’s Julian Savulescu argued in the BMJ that “when conscientious objection compromises the quality, efficiency, or equitable delivery of a service, it should not be tolerated”.
More recently, Canadian bioethicist Udo Schuklenk and a colleague contended in the BMJ that
“If at any given time a doctor is unable to continue practicing due to their—ultimately arbitrary—conscience views, nothing would stop them from leaving the profession and taking up a different vocation. This happens across industries and professions very frequently. Professionals can be expected to take responsibility for the voluntary choices they make.”
Responding to the ruling, Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said: “We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.”
The case is sure to be appealed, but if the doctors championing conscientious objection fail, the consequences will be dire.
Throughout Canada, doctors would be required to refer for euthanasia. If they refuse, they will be hounded out of their profession, or, at best, shunted into specialties where the question will not arise, like pathology or dermatology.
This ruling shows how quickly tolerance vanishes after euthanasia has been legalised. In the Carter decision which legalised it, Canada’s Supreme Court explicitly stated that legalizing euthanasia did not entail a duty on the part of physicians to provide it. Now, however, 18 months and more than a thousand death after legalisation, conscientious objection is at risk.
It also shows how vulnerable religious-based arguments can be. The plaintiffs contended that referring patients violated their right to religious freedom. While this is true, is this the main ground for conscientious objection? As several doctors pointed out in the Canadian Medical Association Journal last year, “Insofar as all refusals of therapy are ultimately justified by the ethical belief that the goal of therapy is to provide benefit and avoid harm, all treatment refusals are matters of conscience.”
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