"NO MORE CHRISTIAN DOCTORS"
Part 4: A difficult compromise
Review
Full Text
Part 1 described how a story that might
have had a happy ending was eclipsed by the preaching of a crusade against
three NFP-only physicians. Based on a letter from one of the physicians,
Part 2 explored possible grounds for medical
judgement and professional ethical concerns that might lead a physician to
adopt NFP-only practice. Part 3 explained the
common standing of a physician's religious beliefs vis-á-vis non-religious
beliefs within a secular public square. It introduced but not elaborate upon
the subject of freedom of conscience, making note that those attacking
freedom of conscience for health care workers are, in their focus on a
so-called "problem of conscientious objection," attempting to establish a
'duty to do what is wrong'.[]
Such an attempt was made in Canada in the years following the
legalization of abortion. It was rejected by members of the medical
profession, who refused to support the attack on physician freedom of
conscience. The rejection was the condition necessary to sustain the
compromise that allowed physicians who refused to participate in abortion to
continue to preserve their integrity in practice even as abortion rates
increased dramatically. The story begins, ironically, with high praise
for freedom of conscience.
Early promises of tolerance
Abortion law reform advocates frequently portrayed themselves as
champions of freedom of conscience. In 1965, for example, the Globe and
Mail demanded liberalization of the law "to enable doctors to perform
their duties according to their conscience and their calling."1
Two Private Members Bills on abortion were introduced in1967.2
M.P. Grace MacInnis, sponsor of one of the bills, assured the committee that
"nobody would be forcing abortion procedures on anybody else," suggesting
that abortion should be up to the individual conscience.3
The Omnibus Bill introduced in 1967 included what later became Canada's
new abortion law. It did not include a protection of conscience clause.
Nonetheless, the Canadian Welfare Council stated:
At the risk of labouring the obvious, no woman will be
required to undergo an abortion, no hospital will be required to provide the
facilities for abortion, no doctor or nurse will be required to participate
in abortion.4
Nor was the Catholic Hospital Association concerned:
We note that there is no question of [our hospitals]
being obliged to change their present norms of conduct. On the contrary,
proponents of a 'liberalized' abortion law admit that it should exempt those
who object to being involved in procuring abortions.5
A protection of conscience clause was proposed when the Omnibus Bill
returned to the Commons the following year.6
Justice Minister John Turner responded that the conscience clause was
unnecessary because the proposed law
- imposed no duty on hospitals to set up committees,
- imposed no duty on doctors to perform abortions,
- and did not even impose a duty on doctors to initiate an application
for an abortion.7
The protection of conscience clause was rejected, and abortion was
legalized and regulated.8 If health care
workers and institutions and people objecting to the procedure had not been
promised or led to believe that they would not be compelled to provide
abortions, it is highly doubtful that the abortion law would have passed in
1969.
However, beginning in 1970, the promises made by abortion law reform
advocates concerning respect for freedom of conscience began to be broken.9
Five years after the abortion bill passed, the Globe and Mail (that
erstwhile champion of freedom of conscience) complained:
. . . hospital boards should never have been allowed a
choice in the matter. The Government should . . . require hospitals which
receive public grants to establish abortion committees.10
It appears that the change of attitude was caused by a dramatic yearly
increase in abortion rates which continued for a decade, and an expansion of
the grounds for abortion to include non-medical social reasons. The
broadened grounds for abortion and continuing increases in the abortion rate
increased the likelihood of conscientious objection to the procedure. It
also brought raging controversy. This is the background for the development
of Canadian Medical Association (CMA) policies on abortion and freedom of
conscience for physicians, described in detail in
Appendix "F."
Preserving physician integrity
When the law passed, the CMA's response was based on the premise that
physicians would be permitted to provide abortions, but would not be forced
to do so. This was reflected in the 1970 revision of its Code of Ethics.
A new section, made necessary by the legalization of abortion, required
physicians to disclose personal moral convictions that might prevent them
from recommending a procedure to patients, but did not require the physician
to refer the patient or otherwise facilitate the morally contested
procedure. The arrangement preserved the integrity of physicians who did not
want to be involved with abortion, while making patients aware of the
position of their physicians so that they could seek assistance elsewhere.
Very likely in response to increasing demand for abortion, and perhaps
influenced by a lobby convinced that all physicians were obliged to
facilitate it, for a brief period the Association modified the 1970 policy
by adding a requirement that an objecting physician "advise the patient of
other sources of assistance." This move toward mandatory referral survived
only a year. The 1970 wording was restored in June, 1978, because of the
backlash from members of the Association who refused to accept the principle
that they could be ordered to violate their conscientious convictions.
Since that time, in the face of repeated efforts to impose a 'duty to do
wrong' on physicians, the Canadian Medical Association has maintained the
position summed up by Dr. John R. Williams, then CMA Director of Ethics and
now Director of Ethics for the World Medical Association:11
"[Physicians are] under no obligation to do something that they feel is
wrong."12
Patient-centred medical practice and health care
While maintaining the personal and professional integrity of the
physician is essential, it is equally essential to attend to the well-being
of the patient. The years immediately following the legalization of abortion
were particularly challenging, since objecting physicians and other health
care workers had to find ways to adapt their practices to respond to both
the expectations of their patients and of their professions.
What has emerged over the years can be described as a difficult
compromise: "difficult" because it has had a difficult birth, and difficult
because it requires continuous effort. It safeguards the legitimate autonomy
of the patient by giving effect to the principle of informed medical
decision making. "Legitimate" here refers to a limit placed on patient
autonomy: physicians cannot be made to do what they believe to be wrong.
This safeguards not only the physician, but the community, since it would be
dangerous to adopt the principle that a community, a profession or the state
can force people to do what they believe to be wrong.
While the difficult compromise was developed because of conflicts caused
by legalization of abortion, it provides a template for a response to
conflicts in relation to other morally contested procedures. Here we return
to the patient, though not specifically to the young woman who had to drive
around the block for her birth control pills. The subject here is how a
physician who has ethical, moral or religious reasons for refusing to
prescribe contraceptives can respond to patients who, given the dominant
contraceptive mindset, are likely to be looking for and expecting to be
provided with hormonal contraceptives or sterilization.
Caveats
Everything that might be said in support of the preservation of personal
integrity and protection of conscience in health care presumes a competent,
caring, patient-centred approach to medical practice and health care. This
must be emphasized and occasionally re-emphasized, since a continuing
emphasis on developing and articulating a defence of freedom of conscience
for health care workers can inadvertently encourage an inappropriate
defensive attitude toward patients. Of course, crusades of the type launched
in Ottawa and suggestions that women should fabricate complaints against
objecting physicians are
unhelpful in establishing the relationship of trust that ought to
characterize physician-patient relationships.
What follows is provided to facilitate reflection and discussion about
how physicians who decline to provide or facilitate contraception for
reasons of conscience can respond ethically to patients seeking assistance
with fertility control. Actual professional and legal requirements will vary
from one jurisdiction to another and obviously take precedence over anything
suggested here. The references provided are not offered as definitive
authorities, but as illustrations of the compatibility of the suggested
approach with professional expectations.
Finally, it is impossible to anticipate all of the situations and
personalities a physician may encounter in his practice, so it is impossible
to make hard-and-fast rules about what should or should not be said, or to
provide a script to be followed.
Physician preparation
The physician should keep up to date on subjects related to birth control
through continuing medical education (formal and informal).13
This is necessary because new information may cause him to modify his
position. Moreover, the subject may come up in relation to the clinical
management of contraceptive methods of birth control prescribed by others.
Finally, he must be in a position to adequately explain the options
available to a patient in order to satisfy the principle of informed
consent.
The physician should be prepared to provide and articulate and cogent
rationale for his practice policies, should the need arise, and to
re-evaluate his position in light of new information or the circumstances of
a particular patient.
Communication
If a complaint arises in connection with a physician's refusal to provide
certain services or procedures for reasons of conscience, it is frequently
caused by a failure to communicate effectively. This includes not only the
communication of information, but conveying a sense of respect and caring
that is consistent with competent, patient-centred medical practice.14
A failure in communication is not necessarily the fault of the
physician, since the patient is a partner in dialogue and shares
responsibility for its success. However, it is presumed that the physician
normally has a greater responsibility for the success of a physician-patient
conversation.15 The physician should consult with like-minded colleagues.
They may be able to suggest communication strategies that have proved
successful in different circumstances.
Clinical settings
A family physician has the opportunity to discuss limits to his practice
when he accepts a patient. Continuing contacts while providing medical care
provide the opportunity for physician and patient to get to know one
another, and for the patient to develop trust in the physician in response
to practical demonstrations of the physician's interest in her welfare. This
kind of established relationship is less likely to break down if a
difference of opinion arises over treatment. A walk-in clinic is more likely
to bring together a physician and patient who have different views about the
morality of some procedures or services, and who have not had the
opportunity to develop a relationship that will sustain successful
communications if these differences become an issue.
Notice
It is common ground that conflicts should be avoided - especially in
circumstances of elevated tension - and that they often can be avoided by
timely notification of patients, erring on the side of sooner rather than
later. However, it is unreasonable to expect physicians to anticipate, in
advance, every conceivable request that might be made by patients.
The interests of patients and physicians are best served by open and
continuing communication, not inflexible notification protocols. On the part
of the physician, this involves a special responsibility to be attentive to
the spoken and unspoken language of the patient, and to respond in a caring
and truthful manner. Notice should be given when it would be apparent to a
reasonable and prudent physician that a conflict is likely to arise.16
In some cases - but not all - this may be when a patient first presents
or is accepted. The same holds true for notification of patients when a
physician's views change significantly.
However, it is more important in walk-in clinics to make some kind of
notice available in the waiting room to advise patients of practice
limitations.17 This minimizes
inconvenience to patients, who may immediately decide to go elsewhere if
they wish to avail themselves of services not available from the physician.
It also minimizes the likelihood of misunderstandings between a walk-in
clinic physician and a patient who do not have an established relationship.
The notice should be in the languages common among patients attending the
clinic. Suggestions for increasing the effectiveness of notices are included
in Appendix "G".
While advance notice to patients and screening by receptionists make it
less likely that an NFP-only physician will be consulted by patients seeking
contraceptives, the subject may come up in relation to the clinical
management of contraceptive methods of birth control prescribed by others.
Further, a patient who has made an appointment because of an initial
interest in NFP may, in the course of the consultation, decide against it.
Finally, a variety of circumstances may lead patients using NFP to consider
other options.
To simplify matters, assume that a physician who declines to provide
contraceptives is consulted by a woman seeking assistance with birth control
who is not aware of the physician's practice limitations.
Presumably, discussion of birth control would follow the taking of a
medical history, and would begin with an assessment of the patient's
awareness of the various methods of birth control available, and any initial
preference she might have.
Much of what follows depends upon the patient's knowledge. Physicians are
expected to provide patients with accurate information about all legal
options available to them, the effectiveness of the methods, adverse effects
or risks associated with each, benefits associated with each, and other
information that someone in the position of a patient would reasonably want
to know. In some cases the physician might have to provide a great deal of
information; in others, it may simply be a matter of filling in some gaps in
what the patient knows.18 In all cases,
the physician must take care to present the information in a form
comprehensible to the patient.19
The physician must disclose whether or not his religious, ethical or
other conscientious convictions influence his recommendations or practice or
prevent him from providing certain procedures or services. If medical
judgement rather than moral/religious conviction is his primary
consideration, it may still be prudent to disclose pertinent religious or
moral beliefs.20
The reason for this is that the patient is entitled to be apprised of
non-medical factors that may influence a physician's medical judgement and
recommendations. The patient is also entitled to know whether or not the
physician's medical evaluation of the contraceptive(s) in question is
consistent with the general view of the medical profession.21
The physician should invite questions from the patient at different
stages in the consultation to ensure that he has been correctly understood.22
The goal is to ensure that the patient has sufficient information and
understanding to make an informed decision about what kind of birth control
she wishes to use. With respect to any reference to his conscientious
convictions, unless the patient questions him, asks for further explanation,
or otherwise indicates that she does not understand his position, the
physician need not and probably should not expand upon the basis for his own
position. To do so would likely invite the accusation that he is
"preaching."23
Anatomically accurate, life-size or scale models, graphics, charts or
tables may facilitate communication. The physician might prepare a pamphlet
to give the patient during or after a discussion. This would help the
patient to recall the conversation accurately if she wishes to give the
matter further thought.
It is up to the patient, following the consultation, to decide whether or
not she wishes to accept the physician's recommendation to use a natural
family planning method. If she prefers to use a contraceptive method, she
must be advised that she may approach other physicians or seek them from
other sources, such as public health clinics.24
An objectionable approach
It is instructive to compare this approach with one described by one of
the commentators on the '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.25
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.
Nonetheless, what is described here is conduct unacceptable in ethical
medical practice. 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. 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.
Sustaining the compromise
While the exercise of freedom of conscience by physicians and other
health care workers must be supported and defended, it is equally necessary
to support and defend patient-centred practice and respect for the principle
of informed medical decision-making. The fulfilment of this dual obligation
requires patience, perseverance, honesty and good will, and it may sometimes
entail difficulty or misunderstanding.
Notes
1.
"Free the Doctor",Globe and Mail, 18 May, 1965. Quoted in de Valk
A. Morality and Law in Canadian Politics: The Abortion
Controversy. Dorval, Quebec: Palm Publishers, 1974, p. 18 Two years
later an editorial in the Globe stated that the Government had
decided "that where religious moralities conflict, the State should support
none, but leave the choice to individual conscience. It is a policy that
should also be followed with abortion." "Now the job is to be done, let it
be done right", Globe and Mail, 21 December, 1967. Quoted in de
Valk, supra, p. 56
2. One of these had a conscience clause
almost identical to that in the British Abortion Act. Standing
Committee on Health and Welfare, Minutes of Proceedings and Evidence,
Appendix "QQ": Brief submitted by the Catholic Hospital Association
of Canada . . . on the Matter of Abortion. February, 1968, P. 679,
paragraph 19.
3. Quoted in de Valk, supra,
p. 44-45
4.
Standing Committee on Health and Welfare, Minutes of Proceedings and
Evidence, Appendix "SS": Canadian Welfare Council Statement on
Abortion to the House of Commons Standing Committee on Health and
Welfare. February, 1968, p. 707
5.
Standing Committee on Health and Welfare, Minutes of Proceedings and
Evidence, Appendix "QQ": Brief submitted by the Catholic Hospital
Association of Canada . . . on the Matter of Abortion. February,
1968, p. 676
6. The Progressive Conservatives and
Creditistes put forward seven amendments intended to guarantee the right
of conscientious objection to individuals or institutions. It was agreed
that debate on one amendment would dispose of all seven. The clause had
been proposed M.P. Robert McCleave, who was in favour of legalizing
abortion. (Hansard- Commons Debates, 28 April, 1969, p. 8069)
What was then debated was to the following effect:
- Nothing in the new law shall be construed as obliging any hospital
to establish a therapeutic abortion committee, or any qualified medical
practitioner to procure an abortion, or any member of a hospital staff
to assist in abortion. (A sub-amendment was added to the original
amendment. The paraphrase reflects the effect of both. (See
Hansard-Commons Debates, April 28, 1969, p. 8056, 8063)
7.
Hansard-Commons Debates, April 28, 1969, p. 8058-8059
8.
Hansard- Commons Debates, 28 April, 1969, p. 8087. Senator
Haidasz had long since achieved a strong pro-life reputation.
9.
A little over a year after abortion was legalized, British Columbia
Health Minister Ralph Loffmark told the Annual General Meeting of the
British Columbia Medical Association that "all hospitals which ban
abortions on religious grounds may be forced to change their policies."
The chairman of the BCMA hospital committee said that he believed most
of his colleagues would support the requirement, but it was acknowledged
that the law permitted but did not require provision of abortions.
B.C.M.A. Annual Meeting. CMAJ November 21, 1970, Vol. 103,
1223 (Accessed 2014-02-22)
A 1975 biography of Dr. Henry
Morgentaler described how he and his staff performed an abortion on a
shouting, squealing 16 year old severely retarded girl who could not
understand what was happening. Pelrine EW. Morgentaler:
The Doctor Who Couldn't Turn Away. Gage Publishing, 1975, p. 55.
Over twenty years later, as if demonstrating that Dr. Morgentaler was
just a little ahead of his time, a Quebec Court ordered the abortion and
sterilization of a mentally ill woman who was not capable of requesting
or consenting to the procedures. Murphy S.
Conscience or
Contempt of Court? Court orders abortion of woman. Protection
of Conscience Project.
Between 1977 and 1984, nurse Linda
Bradley was denied employment at four British Columbian hospitals
because she did not want to assist with abortions. Desperate, she
sacrificed her convictions to get a job at the Richmond General
Hospital. She lost it after refusing to assist at the hysterotomy of a
mother, five and a half months pregnant. Murphy S.
Nurse Refused Employment,
Forced to Resign: A Two Tiered System of Civil Rights.
BC welfare worker Cecilia Moore was fired in 1985 for refusing to
authorize payment for an abortion that would have been illegal under the
law as it then stood. Murphy S.
Insubordination.
Protection of Consience Project.
Three transition house workers
in Ontario were fired - with the government's approval - for refusing to
refer women for abortions. Kennedy, Frank,
"Sweeney Defends
Firings:Transition house workers fired, denied benefits for
'misconduct'". The Interim, March, 1989
In 1992, BC Health Minister Elizabeth Cull ordered 33 British
Columbian hospitals to perform abortions. Hawkins, Anthony,
"BC stamps out choice: Orders hospitals to do abortions; taxpayers to
fund them." The Interim, 20 April, 1992. (Accessed
2010-05-18)
Over thirty years after the promises were made,
postpartum nurses at Foothills Hospital in Calgary were told that they
would have to be involved with late term abortions, regardless of their
moral convictions. Ko M.
"Personal Qualms Don't Count: Foothills Hospital Now Forces Nurses To
Participate In Genetic Terminations." Alberta Report, April
12, 1999.
10.
Globe and Mail, 18 January 1974. Quoted in de Valk, supra, p.
137
11. Carleton University, Centre on Values
and Ethics. John
R. Williams, Curriculum Vitae. (Accessed 2014-02-22)
12.
Mackay B. Sign
in office ends clash between MD's beliefs, patients' requests.
CMAJ January 7, 2003 vol. 168 no. 1 (Accessed 2014-02-16)
13. Canadian Medical Association
Code
of Ethics (2004): "6. Engage in lifelong learning to maintain and
improve your professional knowledge, skills and attitudes." (Accessed
2014-02-22)
14. College of Physicians and Surgeons of
Ontario,
Physicians and the Ontario Human Rights Code (2008). "Treat
patients or individuals who wish to become patients with respect when they
are seeking or requiring the treatment or procedure. This means that
physicians should not express personal judgments about the beliefs,
lifestyle, identity or characteristics of a patient or an individual who
wishes to become a patient. This also means that physicians should not
promote their own religious beliefs when interacting with patients, nor
should they seek to convert existing patients or individuals who wish to
become patients to their own religion." (Accessed 2014-02-22)
15. Canadian Medical Association
Code of Ethics (2004): "22. Make every reasonable effort to
communicate with your patients in such a way that information exchanged
is understood." (Accessed 2014-02-22)
College of Physicians and Surgeons of Ontario,
Physicians and the Ontario Human Rights Code (2008). "The
College expects physicians to communicate decisions they make to end a
physician-patient relationship, refrain from providing a specific procedure,
or to decline to accept an individual as a patient, and the reasons for the
decision in a clear, straightforward manner. Doing so will allow physicians
to explain the reason for their decision accurately, and thereby avoid
misunderstandings." (Accessed 2014-02-22)
16. Canadian Medical Association
Code of Ethics (2004): "12. Inform your patient when your
personal values would influence the recommendation or practice of any
medical procedure that the patient needs or wants." (Accessed
2014-02-22)
College of Physicians and Surgeons of Ontario,
Physicians and the Ontario Human Rights Code (2008).
"Communicate clearly and promptly about any treatments or procedures the
physician chooses not to provide because of his or her moral or
religious beliefs."(Accessed 2014-02-22)
17.
Mackay B. Sign
in office ends clash between MD's beliefs, patients' requests. CMAJ
January 7, 2003 vol. 168 no. 1 (Accessed 2014-02-16)
18. Canadian Medical Association
Code
of Ethics (2004): "21. Provide your patients with the information
they need to make informed decisions about their medical care, and answer
their questions to the best of your ability." (Accessed 2014-02-22)
College of Physicians and Surgeons of Ontario,
Physicians and the Ontario Human Rights Code (2008). "Provide
information about all clinical options that may be available or appropriate
based on the patient's clinical needs or concerns. Physicians must not
withhold information about the existence of a procedure or treatment because
providing that procedure or giving advice about it conflicts with their
religious or moral beliefs." (Accessed 2014-02-22)
Murray B.
"Informed Consent: What Must a Physician Disclose to a Patient?"
American Medical Association Journal of Ethics, Virtual Mentor. July 2012,
Volume 14, Number 7: 563-566. (Accessed 2014-02-22)
19.
See note 15.
20. Guidelines (like those below) typically
require disclosure when a recommendation or practice is or would likely be
influenced by a belief. However, a physician’s decision or recommendation
may be justified solely on medical grounds without reference to beliefs. The
practical difficulty in a practice and disciplinary environment hostile to
religious belief is that a failure to disclose a belief may invite the
adverse inference that the physician failed to disclose beliefs that were
‘really’ shaping his decision making, especially if the medical grounds are
contested by establishment opinion.
Canadian Medical Association
Code
of Ethics (2004): "12. Inform your patient when your personal
values would influence the recommendation or practice of any medical
procedure that the patient needs or wants." (Accessed 2014-02-22))
College of Physicians and Surgeons of Ontario,
Physicians and the Ontario Human Rights Code (2008).
"Communicate clearly and promptly about any treatments or procedures the
physician chooses not to provide because of his or her moral or religious
beliefs."(Accessed 2014-02-22)
21.
Canadian Medical Association
Code
of Ethics (2004): "45. Recognize a responsibility to give generally
held opinions of the profession when interpreting scientific knowledge to
the public; when presenting an opinion that is contrary to the generally
held opinion of the profession, so indicate." (Accessed 2014-02-22)
22. See note 15.
23. College of Physicians and Surgeons of
Ontario,
Physicians and the Ontario Human Rights Code (2008). ". .
.physicians should not promote their own religious beliefs when interacting
with patients, nor should they seek to convert existing patients or
individuals who wish to become patients to their own religion." (Accessed
2014-02-22)
24. Canadian Medical Association
Code
of Ethics (2004): "24. Respect the right of a competent patient to
accept or reject any medical care recommended. 26. Respect your patient's
reasonable request for a second opinion from a physician of the patient's
choice." (Accessed 2014-02-22)
College of Physicians and Surgeons of
Ontario,
Physicians and the Ontario Human Rights Code (2008). "Advise
patients or individuals who wish to become patients that they can see
another physician with whom they can discuss their situation and in some
circumstances, help the patient or individual make arrangements to do so."
(Accessed 2014-02-22)
25. L___ S___, 30
January, 5:39 pm & 5:46 pm