Appendix "D"

Full Text

DI.    Background

DI.1    This case centres on Dr. K., a physician in general practice in a walk-in clinic in Ottawa, Ontario, who declined to prescribe or refer for manufactured contraceptives or post-coital interceptives for medical, professional and religious or moral reasons. Similarly, he would not provide or refer for abortion or surgical sterilization. He offered support for Natural Family Planning (NFP), a generic term covering various kinds of birth control based on recognition of natural fertility cycles. Two other Ottawa physicians had similar practices.1

DI.2    Factors relevant to the formation of medical judgement may also inform professional ethical and religious/moral judgement. Among these is that the Society of Obstetricians and Gynaecologists of Canada (SOGC) recognizes NFP methods "can be quite reliable when used correctly," include "non-contraceptive benefits," and have no health risks or adverse side effects.2 When the effectiveness of alternative treatments or procedures falls within the same range, it is reasonable to provide, recommend or refer patients for treatments or procedures that minimize health risks and adverse side effects.

DI.3    Knowing that this approach to birth control and related issues would be unexpected, Dr. K. ensured that his patients were aware of his position in advance and that potential patients seeking contraceptives and related services were notified when they presented to the clinic receptionist. A written notice was provided in the reception area that briefly summarized his practice policy.

DI.4    Advance notification of patients of limitations of practice is recognized and recommended by professional and regulatory authorities, including the College of Physicians and Surgeons of Ontario.3

DII.    The incident

DII.1    On the morning of 29 January, 2014, a 25 year old married woman went to the walk-in clinic where Dr. K. was practising. When she told the receptionist that she wanted a prescription for birth control pills, she was advised of the physician's position and given a copy of the explanatory notice.

DII.2    The young woman drove around the block to a clinic about two minutes away and obtained the prescription and pills.

DIII.    Evidence re: access

DIII.1    The evidence is that, in Ottawa in 2014, three out of 3,924 area physicians did not prescribe oral contraceptives: 0.08% of the medical profession in the area.4

DIII.2    Birth control services were widely available in Ottawa at the time. Responding to a report of incident, the Medical Officer of Health and the President of the Academy of Medicine of Ottawa urged people to "emphasize and celebrate" the wide availability of birth control services, the morning after pill, referrals for abortion, and vasectomies.5

DIII.3    The wait list for abortion in Ottawa in 2014 was estimated to be 42 days.6 The average emergency room wait time in five major Ottawa hospitals was over 6 hours for complex conditions and almost three hours for minor or uncomplicated conditions.7 Wait times for MRI and CT scans in the city were up to 52 and 68 days respectively. Ottawa patients waited up to almost three months for surgery for some life threatening conditions: from 23 days for breast cancer surgery to 87 days for a cardiac bypass.6

DIII.4    In contrast, the young woman in this case obtained her birth control pills by driving around the block to another clinic, about a two minute drive. Another patient who was unable to get a birth control prescription at the walk-in clinic two years earlier went to the same alternative clinic, which she described as being "across the street."8

"Health risks"

DIII.5    The accusation that physicians who refuse to prescribe contraceptives thereby expose women to "serious risk" to their "health and safety" makes at least two assumptions. First: it assumes that pregnancy itself presents a "serious" risk to health and safety. Second: it assumes that pregnancy cannot be avoided without the use of contraceptives. Neither assumption withstands scrutiny.

DIII.6    While any pregnant woman faces health risks that are not faced by a woman who is not pregnant, serious risks are the exception, not the rule, and ordinary risks associated with pregnancy are readily managed by appropriate care. The vast majority of women who use contraception want to avoid pregnancy per se, not health risks that might be associated with it.9

DIII.7    Whatever reason a woman might have for wanting to avoid pregnancy, she need not use contraceptives. In the first place, as the SOGC recognizes, Natural Family Planning can be as effective as contraception in avoiding pregnancy, and the three physicians were willing to support patients who wished to use it. Thus, their refusal to prescribe contraceptives did not expose women to avoidable health risks, let alone 'serious risks to health and safety.'

DIII.8    Second, a woman who rejects an offer of NFP and who is refused a prescription for contraceptives can avoid pregnancy by avoiding acts likely to lead to pregnancy until she has obtained the prescription she wants. The comments of Ottawa's Medical Officer of Health (III.3.1) is evidence that the duration of abstinence required of patients refused contraception by one of the three physicians would be substantially less than wait times at emergency rooms in Ottawa hospitals. The duration of the abstinence required in this case - a two minute drive to the alternative clinic - was not unduly burdensome.

DIII.9    Finally, 68 day waits for CT scans and 87 day wait lists for cardiac bypass surgery involve unquestionably serious risks to health and safety, including the possibility of death or disabling injury. Moreover, the patients in these cases are largely unable to control factors tending to such outcomes. Particularly within this broader context, the claim that the failure to prescribe contraceptives exposes women to serious risks to their health and safety is untenable.

DIV.    A solution in search of a problem

DIV.1    It is instructive to consider a case of alleged professional misconduct based on conscientious objection provided by a commentator on a ‘pro-choice’ Facebook page:

•  My doctor has told me to my face that it is my womanly duty to have children and she will never condone me to prevent the birth of a child in any way. She also said she would not sign the vasectomy papers for my husband to get one. . .She lectures me often when I go in. She has 3 or 4 kids and says she is not done.10

DIV.2    Assume, for present purposes, that this brief narrative is an essentially accurate summary of the physician’s conduct. Assume, as well, that the physician has religious or moral objections to contraception, abortion, and contraceptive sterilization, all of which are morally contested procedures that she may decline to provide or facilitate. Finally, assume that the physician believes, for moral or religious reasons, that women should have many children.

DIV.3    What is described here remains conduct unacceptable in ethical medical practice.

DIV.4    While a physician is obliged to disclose the existence of moral or religious convictions that would influence her recommendations or preclude the provision of certain procedures, the disclosure must be respectful of the patient and must not take the form of "preaching" or "lecturing." Such a disclosure is meant to be about what a physician will not do and why, not about what the patient should do.

DIV.5    Further: while it is not inconceivable that, in some circumstances, a physician might disclose some personal information or experience in a manner supportive of a patient, to set oneself up as a kind of role model (‘you should have as many children as I do’) is highly objectionable.

DIV.6    Similar stories were told by women calling a CBC radio programme broadcast throughout Ontario in 2014.11 Many had experienced equally condescending or obnoxious treatment by physicians.

DIV.7    The problem in such cases is disrespectful communication by physicians. The College has policies that can deal with this problem, though they may need to be reinforced and enforced. But the POHR requirement for "effective referral" in order to "facilitate access" to widely available services like contraception and abortion is a solution in search of a problem, or, to put it in terms of Charter of Rights jurisprudence, an example of a policy that is "overbroad."

Notes

1.  For a complete account, see Murphy S. "NO MORE CHRISTIAN DOCTORS." Protection of Conscience Project, 25 February, 2014 (Revised 2 March, 2014)

2.  Black A, Francoeur D, Rowe T. Canadian Contraception Consensus. SOGC Practice Guideline No. 143- Part 3 of 3 (April, 2004) Chapter 9, p. 365 (Accessed 2014-02-11)

3.  In 2002 the College formally approved a written notice to patients and directed that it be made available in the physician's waiting room. Citing the Canadian Medial Association's Code of Ethics, the notice conveyed in explict terms the physician's religiously based objection to providing or arranging for abortions, or for prescriptions for birth control for unmarried patients, or Viagra for unmarried men. Murphy S. "Ontario College of Physicians and Surgeons accommodates Christian physician." Protection of Conscience Project, August, 2002.

4.  College of Physicians and Surgeons of Ontario, All Doctor Search (Accessed 2014-07-29)

5.  Levy I. (Medical Officer of Health, Ottawa) and Abdullah A. (President, Academy of Medicine, Ottawa), Letter to the Ottawa Citizen, 1 February, 2014.

6. 

7. 

8.  S____ C____. 30 January, 2014: 7:03 am | 7:05 am. Radical Handmaids (Accessed 2014-02-08)

9.  Frost JJ, Duberstein-Lindberg L. "Reasons for using contraception: Perspectives of US women seeking care at specialized family planning clinics." Contraception, Vol. 87(4) April 2013, p. 465-472 (Accessed 2014-03-10)

10.  L___ S___, 30 January, 5:39 pm & 5:46 pm (https://www.consciencelaws.org/background/procedures/birth002-C03.aspx)

11.  CBC Radio, Ontario Today, 25 February, 2014: Should doctors have the right to say no to prescribing birth control? (Accessed 2015-02-18). 

Prev | Next