Introduction

The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience among health care workers. It does not take a position on the acceptability of morally contested procedures.

The College of Physicians and Surgeons of Nova Scotia (CPSNS) has adopted Professional Standards Regarding Conscientious Objection (Conscientious Objection)1 that will compel physicians who are unwilling to provide a service for reasons of conscience to help patients obtain the service elsewhere.

Existing CPSNS policy on euthanasia and assisted suicide (EAS, commonly called “Medical Assistance in Dying” or “MAID”) requires physicians unwilling to kill their patients2 to initiate a transfer of the patient to someone willing to do so;3 this requirement has been in place since 2017.4  Similarly, since 2022, CPSNS policy has required physicians to make effective referrals for any service to which they object for reasons of conscience.5 Conscientious Objection explicitly expands existing CPSNS policy to include a requirement for effective referral for all services not prohibited by law. The hostility of the CPSNS to physician freedom of conscience may be associated to the College Registrar’s longstanding promotion of mandatory effective referral for abortion and EAS, detailed in the Project’s 2016 submission to the CPSNS.6

The College adopted Conscientious Objection notwithstanding letters from at least 24 Nova Scotia physicians indicating that they would have to retire early or leave the province if the policy were ratified by the College Council.7 Since CPSNS policies have demanded effective referral/transfer of care for for several years, it is not clear what prompted the physicians to express their determination to leave medicine or leave the province rather than comply with Conscientious Objection. It is possible that they feared that the College would begin actively enforcing these policies, and that they wished to warn the College and Nova Scotians that active suppression of physician freedom of conscience will be contentious and will adversely affect access to health care in the province.

This critique of the Conscientious Objection is limited to issues directly or indirectly related to the protection of physician freedom of conscience.  Parts of the policy are grouped under the following headings for ease of reference in this review:

I. Title, preamble and definitions

II. Standards 1 & 2 (Providing information)

III. Standard 3 (Promotion of practitioner beliefs)

IV. Standard 4 (Effective referral)

V. Standard 5 (Providing patient records)

VI. Standard 6 (Providing continuing care)

VII. Standard 7 (Medical emergencies)

The text of each provision in Conscientious Objection is provided, followed by commentary that discusses key issues. Each part of the critique includes "Recommended Revisions": reformulations of the text to accommodate both patients’ requests for services and physician freedom of conscience.

General commentary and criticism of Conscientious Objection in this review can be applied to other CPSNS policies intended to compel unwilling physicians to become parties to killing their patients or to other procedures they believe to be gravely wrong and/or contrary to good medical practice.

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I.    TITLE, PREAMBLE & DEFINITIONS

Title

I.1    The title of the policy focuses exclusively on conscientious objection, which seems to imply that refusal to provide a service or procedure for moral/ethical reasons is exceptional. That is not the case. The exercise of freedom of conscience (including conscientious objection) is integral to and essential in the practice of medicine.

Medicine: a moral enterprise

I.2    The practice of medicine is an inescapably moral enterprise (Appendix “A”).8,9,10 For that very reason it generates differences of opinion among practitioners and between practitioners and patients. It is thus understandable that a policy like Conscientious Objection should attempt to avoid, minimize, accommodate and respectfully resolve such differences. However, these goals can only be achieved if the policy acknowledges and encourages practitioners and the public to recognize that judgements of conscience (including conscientious objection) are the norm in medical practice, not the exception.

I.3    Both refusal and agreement to provide or collaborate in a service express at least implicit moral/ethical judgement about a requested service. For example, that one ought to prescribe antibiotics in some circumstances but not in others should certainly be an evidence-based assertion, but the decision to prescribe or to refuse to prescribe requires something more than evidence. It requires at least an implicit judgement that, based on the evidence, prescribing antibiotics will be beneficial in a given case (hence ethical) or harmful in another (hence unethical).11 The moral/ethical aspect of practice may be unnoticed, but it is never absent:

[T]he work of doctors and nurses involves them in daily interaction with patients and with other healthcare professionals in which moral judgment and agency is required. [Their] work . . . would simply be impossible were they not to feel that they possessed scope within which to exercise such judgment.12

Preamble

I.4    The preamble states:

This document gives directions to physicians regarding conflicts of conscience which may arise from the physician’s belief structure or religion.

This document applies to all situations in which physicians are caring for patients, including, but not limited to, Medical Assistance in Dying (MAiD), immunization, reproductive care and gender affirming care.

I.5    The preamble does not single out conscientious objection but refers to “conflicts of conscience,” which the policy later defines as conflicts between “care practices or treatments” and a physician’s “personal, ethical and or religious beliefs.” In view of the policy’s definition of “conflict of conscience,” the reference in the preamble to “belief structure or religion” is superfluous.

I.6    The preamble notes that the standards will apply to “all situations in which physicians are caring for patients” (emphasis added), specifically identifying “Medical Assistance in Dying (MAID), reproductive care and gender affirming care.” These are currently controversial, but identifying them is unnecessary because the preamble states clearly that the standards will apply in “all situations.”

I.7    On the other hand, the preamble more accurately reflects the fact that conscience and moral/ethical judgement are integral to medical practice. Further, its statement that the standards will apply in all situations is consistent with the position the Project has taken for decades: that a policy or law concerning the exercise of practitioner freedom of conscience should apply to all procedures, treatments and services, not just those that happen to be contentious in Canada or at some points in history.

Definitions

I.8    Conscientious Objection refers only to patients. References to patients should be understood to include legally authorized patient agents, substitute decision-makers and persons seeking to become patients.

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II.    STANDARDS 1 & 2 (PROVIDING INFORMATION)

Standard 1 (Notice)

II.1    Conscientious Objection includes two standards about providing information. The first states:

1. A physician must communicate promptly and respectfully about any treatments or procedures relevant to the patient’s condition that the physician is unable or unwilling to provide for reasons of conscience.

II.2    Providing patients with timely and respectful notice about treatments a physician will not provide should help to avoid physician-patient conflicts and minimize patient inconvenience.

II.3    Determining what treatments or procedures are relevant to the patient’s condition requires the exercise of professional/clinical judgement and may change over time. For example, it would be incongruous for practitioners to consider abortion as relevant treatment for every woman presenting during pregnancy. It would be equally incongruous for physicians to consider euthanasia as relevant treatment for every patient presenting with an incurable medical condition. A pregnant woman may not welcome and may be offended by the gratuitous offer of abortion and adoption. Similarly, disabled patients may not welcome and many be offended by an unsolicited offer of lethal injection.13

II.4    Standard (1) implies that the only conflicts faced by physicians in relation to providing treatments are conflicts of conscience. That is not the case. Physicians may be unable or unwilling to provide a treatment for reasons unrelated to ethical/moral judgement.14

II.5    To require physicians to notify patients only if their refusal were based on ethical/moral evaluation would be disadvantageous to patients. Physicians should notify patients if they are unwilling to provide a service for any reason.

Standard 2 (Information)

II.6    Standard (2) states:

2.  A physician must discuss all available treatment options with the patient and must not withhold information regarding a procedure or treatment relevant to the patient’s condition, even if providing such information conflicts with the physician’s conscience.

II.7    Generally speaking, what information physicians should provide and the point at which it ought to be provided must be guided by and responsive to the circumstances and expressed interests of each patient. This should be left to the good judgement individual physicians based on their knowledge of and interaction with their patients.

II.8    However, physicians cannot be expected to characterize what they believe to be an unethical/immoral procedure or treatment as normal, acceptable or relevant, especially when they consider it to be unethical/immoral because it is actually or potentially harmful. Prescription of antibiotics for viral infections and Ivermectin for Covid-19 are familiar examples. Refusal to present these as treatment options is usually glossed as a “professional” or “clinical” decision and typically justified on that basis, but refusal in these circumstances is an ethical or moral decision informed by clinical or professional judgement about the effects of the drugs15 (see I.3; Appendix “A”).

II.9    Nonetheless, the Project’s experience is that objecting physicians are willing to provide information on options necessary to enable patients to make informed medical decisions, including information about procedures or services the objecting physicians refuse to provide or recommend. Indeed, physicians may be most interested in providing information about such services to patients who indicate an interest in them: again, the familiar examples of antibiotics for the flu and Ivermectin for Covid-19. The Project is aware of experienced palliative care physicians who, though opposed to involvement in euthanasia and assisted suicide, are adamant that caring for patients requires practitioners to be fully and sympathetically responsive to patients’ requests or interest in the procedures.

II.10    Providing information within the context of a physician-patient relationship is directed to facilitating a quintessential human activity: moral/ethical and prudential deliberation. It is not directed to the provision of a treatment or procedure, even though a treatment or procedure may be provided as a result of a patient’s deliberation. In the Project’s view, there is no plausible moral/ethical reason to refuse to provide information necessary to enable informed medical decision-making.

II.11    On the other hand, physicians may be unable to provide information for reasons unrelated to ethical/moral judgement. For example: some physicians who have provided EAS have withdrawn from the practice because of adverse personal reactions to the experience.16 They may have no moral/ethical objections to the procedure, but may find it emotionally or psychologically taxing to provide the requisite information to patients.

II.12    In the event that, for any reason, a physician were unwilling to provide information necessary to enable informed medical decision-making, the physician should promptly connect the patient with a physician, health care practitioner or agency willing to do so. 

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III.    STANDARD 3 (PROMOTION OF PRACTITIONER BELIEFS)

III.1    Standard (3) states:

3. A physician must not promote their own moral or religious beliefs to patients.

III.2    Physician exercise of freedom of conscience during clinical encounters must entail, at some point, an implicit or explicit expression of moral or ethical judgement for or against services sought by patients, particularly when providing the notice required by Standard (1). Physicians should not be accused of promoting their beliefs simply because they comply with Standard (1) or explain their position in response to questions from patients.

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IV.    STANDARD 4 (EFFECTIVE REFERRAL)

IV.1    Standard (4) states:

4) When a physician is unable or unwilling to provide a legally available surgical or medical treatment for reasons of conscience, the physician must make an effective referral.

IV.2    “Effective referral” is defined by Conscientious Objection to mean “a referral made in good faith to a non-objecting, available, and accessible physician, other health-care professional, or agency.”17

IV.3    “Available and accessible” may be taken to mean a practitioner or agency “operating and/or accepting patients” and reasonably accessible to the patient virtually or at a physical location.18

IV.4    Any treatment not prohibited by law is legal, whatever its standing might be in relation to evidence-based ethical practice. There can be no legal duty to provide an illegal treatment, and the CPSNS does not have the authority to override a legal prohibition. Further, there can be no ethical/moral/legal duty to provide a treatment that is not available. Thus, the qualifier “legally available” does no work in the paragraph; it is, at best, a superfluous rhetorical flourish.

IV.5    On the other hand, what counts as “medical” treatment depends upon a philosophy of medicine, several of which are current nationally and internationally: Christian, Islamic, Judaic, Indigenous and Secularist among them. None of these hold the trump card in Nova Scotia. According to the Supreme Court of Canada, neither a secular state nor a secular health care system (tax-paid or not) must be purged of the expression or manifestation of philosophical, moral, religious or cultural beliefs (see Appendix “A” at A7).

IV.6    Conscientious Objection cites the Canadian Medical Association (CMA) Code of Ethics and Professionalism as a resource, and the CPSNS acknowledges that Conscientious Objection was informed by the College of Physician and Surgeons of Alberta (CPSA) policy Conscientious Objection.19 In fact, neither the CMA nor the CPSA support a policy of mandatory effective referral for morally contested services, and the CMA has repeatedly gone on record as opposing it.

Mandatory effective referral contradicts CMA policy

IV.7    A proposal for mandatory referral by objecting physicians was rejected when the CMA Code of Ethics was revised in 201820 and is not required.21 On the contrary: the CMA opposes demands for effective referral to providers by objecting physicians.

IV.8    For over 50 years the CMA has consistently opposed attempts to compel physicians to refer for procedures to which they object for reasons of conscience.22 Its first foundational statement addressing physician freedom of conscience was a 2016 submission to the College of Physicians and Surgeons of Ontario (CPSO) opposing the CPSO demand for effective referral to providers for euthanasia and assisted suicide.23 Important elements of the CMA statement were later incorporated into the CMA Medical Assistance in Dying policy. The first and most important element is the recognition of physicians as moral agents.

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, medical regulators 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.24

IV.9    The CMA argues that physician freedom of conscience can be protected without impeding or delaying patient access to EAS by asking physicians to fulfil “a duty that is widely morally acceptable” that respects their moral agency, while requiring the community to accept its responsibility to ensure access.25 That this can be done is demonstrated in British Columbia’s Vancouver Island health region, which, according to the Canadian Association of MAID Assessors and Providers (CAMAP), had achieved the highest euthanasia rate in the world by 2020,26 even though objecting physicians were not required to make an effective referral or transfer of care.27

IV.10    Certainly, the CMA recognizes that some physicians who refuse to provide assisted suicide or euthanasia do not refuse to refer a patient to a colleague willing to provide the service. But it acknowledges that others find referral “categorically morally unacceptable” because they believe that referral makes them complicit in grave wrongdoing. In its submission to the CPSO, the Association characterized a demand for “effective referral” as illicit discrimination, not a solution, because it “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 notion of conscience . . . the CMA [seeks] to articulate a duty that achieves an ethical balance between conscientious objection and patient access in a way that respects differences of conscience. It is the CMA's position that the only way to authentically respect conscience is to respect differences of conscience.28

IV.11    Then CMA President Dr. Cindy Forbes and Vice President Dr. Jeff Blackmer vigorously defended the Association’s approach in a letter to a parliamentary committee studying implementation of the Carter ruling:

The Special Joint Committee was incorrectly informed that the CMA “has essentially said there should be a requirement to refer.” This statement is categorically untrue and misrepresents the CMA’s recommendations. . .

Based on the experiences in other jurisdictions, it is the CMA’s position that access will not be impeded based on the proportion of physicians that may choose not to participate based on conscience. We must re-emphasize that the arguments being advanced to suggest otherwise are unnecessarily creating conflict and forcing legislators and regulators to take a decision based on a false dichotomy.29

IV.12    In a later submission the CMA emphasized the need to “respect the personal convictions of health care providers” and accommodation of both patients seeking euthanasia/assisted suicide and physicians unwilling to participate in the procedures for reasons of conscience. In particular, the submission noted, “From the CMA’s significant consultation with our membership, it is clear that physicians who are comfortable providing referrals strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not.”30

IV.13    Current CMA policy on euthanasia and assisted suicide (“medical assistance in dying”) states that objecting physicians "are not required to provide it, or to otherwise participate in it, or to refer the patient to a physician or a medical administrator who will provide assistance in dying to the patient."31 It also appears to put the onus on the state "to implement an easily accessible mechanism to which patients can have direct access" to obtain the services so that physicians can adhere to their moral commitments.32

Mandatory effective referral contradicts longstanding CPSA policy

IV.14    A policy of “effective referral” for contested services would radically contradict the position the CPSA has officially maintained since 1991, notwithstanding apparent efforts by some CPSA officials since 2009 to implement an effective referral policy through the back door, as it were (see Appendix “B”).33 Alerted by the Project to their activity in 2015, the President of the Alberta Medical Association agreed that requiring effective referral would dramatically change the CPSA position.34

Effective referral, complicity and moral partisanship

IV.15    Long-standing legal, religious and moral principles support the view that one can be held responsible for the actions of someone else. For example, the practice of “ethical investment” reflects a widespread belief that one is responsible for the good or the harm that flows indirectly from one's financial participation in a company.35

IV.16    It is thus not surprising that referral for morally contested services imposes “the serious moral burdens of complicity.”36 Practitioners’ response to the problem of complicity varies. Some physicians who object to sex selective abortion may be willing to refer patients or initiate a transfer of care because they believe that doing so absolves them of moral responsibility for the procedure. Others, however, would refuse, because they believe that actively helping a patient to obtain a sex selective abortion would make them complicit in wrongdoing. This is not an idiosyncratic response. Even academics who demand that objecting physicians be forced to refer for abortion admit that refusal to refer for immoral/unethical procedures is not only rationally defensible, but obligatory.

IV.17    For example, in 2006, Carolyn McLeod admitted that referral is not a compromise. Being forced to refer, she said, would put objecting physicians “at serious risk of losing moral integrity through self-betrayal,” with profound consequences for their “psychological health and agency.”37 However, by 2008, concerned that “the pro-life side” was winning the intellectual argument on mandatory referral,38 she proposed a new argument “to ensure that [physicians] do not get protections for refusal to refer.”39 She again admitted that requiring effective referral was not a compromise.40 She nonetheless insisted that objecting physicians should be forced to refer for abortion because, she argued, “abortions are morally permissible.”41 Objecting physicians, she explained, “ought not to be able to follow their consciences when the voice of their conscience misleads them.”42

IV.18    Five years later, she and Lori Kantymir insisted that “referrals are not appropriate when the objection itself is morally justified”: that “conscientious objections by healthcare professionals that are morally justified should not be followed up by referrals.”43 However, they insisted upon compulsory referral for most abortions because — in their view — most abortions are morally acceptable44 — though not sex-selective abortions.45 At this stage McLeod had co-authored a model conscientious objection policy that would force unwilling practitioners to refer for “health services” they believed to be immoral/unethical if the services were “publicly funded,” public funding (not moral justification) trumping freedom of conscience.46

IV.19    McLeod and colleagues (the “Conscience Research Group” – CRG) organized a workshop to develop the model policy in 2013. CPSNS Registrar Dr. Gus Grant was one of the participants. Others were Andréa Foti, Manager of the CPSO Policy Department, and Bryan Salte, Associate Registrar of the College of Physicians and Surgeons of Saskatchewan (CPSS).47 Bryan Salte later urged all medical regulators to adopt such a policy48 and attempted (unsuccessfully) to have CPSS adopt an almost exact duplicate of the CRG model policy.49 Details about the CRG and Dr. Grant’s subsequent  promotion of effective referral were provided in the Project’s 2016 submission to the CPSNS on the draft Standard of Practice: Physician Assisted Death.50

IV.20    McLeod’s obvious moral partisanship in advocating compulsory referral (except, perhaps, for sex selective abortion) is to be expected in politics and is not out of place in academic discourse, but is unacceptable in the regulation of medical practice is unacceptable. In demanding that objecting physicians actively help patients obtain any kind of service not prohibited by law — including lethal injection —  Conscientious Objection demonstrates the kind of authoritarian moral partisanship exemplified by Carolyn McLeod et al. It makes a diktat of her dictum that objecting physicians “ought not to be able to follow their consciences” when their failure to conform to her moral/ethical viewpoint demonstrates that “the voice of their conscience misleads them.”

Cooperation vs. collaboration

IV.21    Morally contested services often involve deeply controversial subjects, including disputes about what ought to be considered “medical” treatment. However, Conscientious Objection attempts to erase the controversy by an authoritarian exercise of moral partisanship. It simply assumes and imposes the default position that practitioners have a moral/ethical duty to facilitate services they believe to be gravely wrong — like killing their patients — and it enlists the power of the state to impose this contested premise systemically. It attempts to override unceded moral/ethical positions — and freedom of conscience — just as European colonists assumed and imposed false and enlarged premises of terra nullius (supported until recently by judicial deference) to override indigenous title to unceded lands in Australia and elsewhere.51

IV.22    Effective referral may be reasonably classed as morally charged participation or seen to entail serious moral/ethical responsibility. Practitioners who refuse to do something that establishes a causal connection to or actively supports what they believe to be gravely wrong are applying the same logic that underlies the law on criminal complicity. They would be legally culpable were they to help a neighbour find someone willing to commit arson or import illicit drugs. They reasonably hold that they would be morally culpable were they to help patients find someone willing to kill them.

IV.23    On the other hand, these practitioners are generally willing to cooperate with patients by providing information to enable informed medical decision-making and connection with other health care practitioners or agencies. Similarly, they are generally willing to cooperate in patient initiated transfers of care by providing patient records requested by physicians or practitioners assuming responsibility for a patient. Finally, they are generally willing to continue to provide treatment and care unrelated to the contested service.

Pragmatic considerations

IV.25    Practical considerations can be added to principled arguments on this point. The Project is aware of at least two physicians who left Ontario for Alberta because of the CPSO effective referral policy and its toxic effects on the practice environment, most recently in relation to demands for complicity by objecting physicians in euthanasia and assisted suicide. The Project is also aware of other Ontario physicians who, for the same reasons, stopped taking patients, left palliative care medicine or were contemplating early retirement.

IV.26    State medical regulators like the CPSO don’t want to become outliers.52 They have a vested interest in preventing practitioner emigration to more open-minded jurisdictions by convincing other medical regulators to adopt their coercive effective referral policies. On the other hand, Nova Scotians will not be well-served by a CPSNS standard likely to cause physicians to leave the province, retire prematurely, restrict their practices or leave important fields like family medicine, internal medicine and palliative care.53

IV.27    Again, in the court case recommended by the CPSNS as a resource in Conscientious Objection, the CPSO argued that physicians who refuse to make effective referrals for euthanasia should transfer from family medicine and palliative care (for example) to sleep medicine and hair restoration.54 Nova Scotians who have different health care priorities may reasonably take a different view of the matter.

Seeking physician cooperation

IV.28    Many objecting physicians reasonably consider effective referral to be a morally/ethically unacceptable form of collaboration. On the other hand, the willingness of objecting physicians to cooperate (but not to collaborate) — if understood and honoured — makes it possible to accommodate physicians and patients by recognizing and accommodating the diversity manifested in physician responses to ethical/moral conflicts.

Accommodating diversity, avoiding discrimination

IV.29    Physicians demonstrate a range of responses to requests for services they decline to provide for reasons of conscience that reflects different forms of moral reasoning. The CMA points out that some physicians are willing to provide referrals for services they decline to provide, but others are not, and that supporting the exercise of freedom of conscience by one group and denying it to the other is a form of illicit discrimination (see IV.10).

IV.30    To this the Project adds that the same physician may respond differently in different circumstances. For example: a physician willing to make an effective referral for euthanasia for terminal illness may be unwilling to do so for mental illness. Further, continued moral/ethical reflection may cause physicians to become more or less restrictive in their responses over time or in different situations.

IV.31    It is thus preferable for standards of practice to draw physicians’ attention to a range of possible responses that can accommodate patients’ requests.

IV.32    The Project recommends an approach based upon two key distinctions: cooperation vs. collaboration, and providing a service vs. providing information about a service. In applying these distinctions it is important to keep in mind that providing information is not always a morally neutral act, a point recognized by the General Medical Council of the United Kingdom55 and the American Medical Association.56

IV.33    Physicians are likely to refuse to provide information that they believe would directly facilitate the provision of a service they consider unethical/immoral. For example, they are likely to refuse to provide contact information for sources providing Ivermectin to treat Covid-19. Objecting physicians want to avoid positive action causally connected to contested services, but patients remain free to pursue them, with or without the assistance of others.

IV.34    On the other hand, the Project's experience is that objecting physicians are willing to provide contact information or information that facilitates patient contact with other health care service providers or agencies generally, even if some of those providers might provide the contested service.

IV.35    The government of Nova Scotia is well-placed to enable accommodation of physicians and patients and avoid needless conflict by establishing system “navigators” able to connect patients seeking services directly with physicians willing to provide them. However, it is critical to avoid arrangements that would push objecting practitioners beyond cooperation to collaboration. The point can be illustrated by reference to unacceptable and acceptable alternatives.

Unacceptable alternatives

IV.36    MAiD Care Coordination Services (MAID CCS) established in some provinces are presumably useful for practitioners willing to participate in providing EAS. However, a MAID CCS is dedicated to delivering euthanasia and assisted suicide and would not, for that reason, be a navigator acceptable to objecting practitioners. This applies to any other morally controversial service.

Acceptable alternatives

IV.37    Some provinces have programmes or agencies that help patients navigate the public health care system: Alberta Health Link57 and Health Connect Ontario,58 for example. These programmes facilitate access to all services patients may be seeking, including morally controversial services. However, unlike a MAID CCS — they are not dedicated to ensuring the delivery of a morally controversial service.

IV.38    Mindful of the CMA's recommendation (see IV.13), the government of Nova Scotia could establish an acceptable general system navigator to allow patients to easily connect with all services, thus enabling physicians to adhere to their moral commitments. 

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V.    STANDARD 5 (PROVIDING PATIENT RECORDS)

V.1    Standard (5) states:

(5) With the consent of the patient, a physician must provide all relevant health records to the physician receiving the effective referral.

V.2    The information contained in patient records is the property of the patient, who is legally entitled to control its dissemination. Another physician, health care practitioner or agency may assume responsibility for some or all aspects of patient treatment as a result of an effective referral, but also through a patient-initiated transfer of care, self-referral or other means.

V.3    Transferring patient records after a patient-initiated transfer of care is a standard requirement in jurisdictions where euthanasia/assisted suicide (EAS) is legal. Objecting physicians unwilling to collaborate in EAS by initiating transfers of care so that EAS can be provided are generally willing to cooperate by providing health records in transfers of care initiated by a patient or others. The same approach can be taken to other morally controversial services.

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VI.    STANDARD 6 (PROVIDING CONTINUING CARE)

I.1    Standard (6) states:

6. After making an effective referral, the physician must continue to provide care to the patient until this care is no longer required or wanted, or until another suitable physician has assumed responsibility for the patient, or until after the patient has been given reasonable notice that you intend to terminate the relationship.

VI.2    For reasons given in Part IV the demand for effective referral is unacceptable, as is the presumption here that effective referral has occurred. Further, a transfer of records may be requested in any of the circumstances described in RR7.

VI.3    In the Project’s experience, objecting physicians are generally willing to continue to provide treatment and care unrelated to the services or procedures to which they object that a patient is seeking from other practitioners. However, some physicians may be unable or unwilling to continue a physician-patient relationship in these circumstances for reasons unrelated to ethical/moral judgement (see II.4, note 14).

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VII.    STANDARD 7 (MEDICAL EMERGENCIES)

II.1    Standard (7) states:

7. In medically emergent situations, physicians must provide whatever medical care is necessary for the patient, notwithstanding any issues of conscience.

Canada: euthanasia as an emergency

VII.2    The first point to note is that requests for active assistance in providing euthanasia and assisted suicide are treated as emergencies by mainstream actors in Canada’s public healthcare system. Paramedic regulators in Nova Scotia,59 British Columbia,60 Saskatchewan,61 and Alberta62 acknowledge that paramedics may be called by EAS practitioners to insert an intravenous line. Alberta Health Services has a detailed Emergency Medical Services protocol that anticipates 911 calls by practitioners seeking paramedic assistance in providing EAS.63 EAS practitioners on Vancouver Island have made arrangements with hospitals to admit patients “as an emergency for continuation of the procedure” should difficulties arise with EAS provision outside hospital settings.64 The protocol is available on British Columbia’s General Practice Services Committee website, a committee representing physicians, Ministry of Health, Doctors of BC, BC Family Doctors and regional health authorities.65 And calling 911 for help with EAS and taking EAS candidates to hospital emergency departments was suggested in Ontario even before publication of the CAMAP paper recommending it.66

VII.3    Beyond requests for “emergency continuation” of EAS, the Project’s 2015 submission to the External Panel on Options for a Legislative Response to Carter v. Canada warned that the condition of a patient approved and scheduled for EAS may suddenly and unexpectedly deteriorate, triggering an “emergency” request for EAS before the appointed time.67 The warning was based on 2013 testimony by representatives of the College of Pharmacists of Quebec about Quebec’s euthanasia legislation.68 Note that this situation could classed as an “emergency” in Manitoba, where the College of Physicians and Surgeons of Manitoba describes “medical emergency” as a situation entailing “a sudden injury, illness or complication demanding immediate or early medical care to save life or to prevent serious disability, pain or distress.”69

VII.4    The specific scenario envisaged by the Project was proposed in a 2018 article within the context of Canadian hospital emergency room practice.70 It is almost inconceivable that an ER physician in such circumstances would be in a position to fulfil the legal obligations associated with the provision of EAS for a pre-approved and capable patient.71 When EAS remains a legal option, one of the authors of CAMAP: Complications suggested in 2016 that it would likely be more appropriate to ask the initial EAS practitioner to come and "administer a lethal medication in the ED.”72 In any case, CAMAP warns, “No clinician should administer life-ending medications who was not involved in the MAID assessment and consent process.”73

VII.5    These developments indicate that, as a result of the legalization of euthanasia and assisted suicide in Canada, careful attention must be given to the definition of “medically emergent” situations.

“Medical emergencies”

VII.6    It is universally held that physicians are obliged to provide treatment that is within their competence in an emergency. Codes of ethics often acknowledge this without elaboration.74 Circumstances triggering the obligation are variously described, but typically involve imminent death or serious injury. For example:

Indonesia: “Emergency aid is what [must immediately be done] to prevent death, disability, or severe suffering.”(“Pertolongan darurat yang dimaksud pada pasal di atas adalah pertolongan yang secara ilmu kedokteran harus segera dilakukan untuk mencegah kematian, kecacatan, atau penderitaan yang berat pada seseorang.”)75

Israel: “The physician has no ethical or legal obligation to carry out every demand of the patient, except in the case of urgent lifesaving treatments.” 76

Nepal: “[An] emergency [means] that any delay in treatment would result in increased morbidity and mortality.”77

New Zealand: “Services to preserve life and prevent permanent disability must always be provided.”78

Saudi Arabia: “An emergency situation is a condition resulting from an injury or disease that could threaten a patient’s life, one of his/her limbs, or internal/external organs.”79

VII.7 As the examples above indicate, a medical emergency has traditionally been understood to be a situation in which medical treatment must be provided immediately in order to prevent imminent death, permanent disability, severe suffering, or loss or crippling of limbs or organs. However, in often heated partisan disputes about morally contested interventions, what counts as an “emergency” can be distorted. For example, the Ordre des pharmaciens du Quebec, referring to the traditional ethical obligation to provide services to avoid “serious harm to the patient’s health,” noted that the World Health Organization’s definition of “health” could be used to force objecting pharmacists to personally dispense euthanasia drugs.80

VII.8 The Project has not encountered physicians who would refuse to fulfil their ethical obligation to provide medical treatment in emergencies, as that obligation has been traditionally understood and expressed. Hence, to avoid misunderstanding, the Project recommends that Standard (7) be made more specific about what triggers the universally recognized ethical obligation for physicians to provide treatment in emergencies.

VII.9 Assuming that Standard (7) is intended to reflect the traditional understanding of the universally recognized ethical obligation of physicians to provide treatment in emergencies, the recommended formulation does not include reference to issues of conscience.

VII.10 If the CPSNS intends to depart from or revise the universally recognized ethical obligation of physicians to provide treatment in emergencies, it should begin a transparent public consultation on that subject, not introduce it through the back door by means of a morally partisan interpretation of “medical emergency” in its policies and standards.

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Notes

1.    College of Physicians and Surgeons of Nova Scotia, Professional Standards Regarding Conscientious Objection, Halifax: CPSNS, (24 May, 2024) [Conscientious Objection].

2.    Supreme Court of Canada Justice Michael Moldaver joined in the Court’s unanimous judgement ordering the legalization of euthanasia and assisted suicide, identified by the Court as "physician assisted dying". In a subsequent hearing, knowing the decision would allow practitioners to “purposefully and deliberately take someone’s life with impunity,” he was especially candid about the importance of safeguards: “When Parliament authorizes someone to kill somebody, they might want judicial approval first. . . They might want to put in measures that ensure so far as possible that we are not killing people who really ought not to be killed.” Carter v Canada (Attorney General), 2016 SCC 4, [2016] 1 SCR 13, (Oral argument, Appellant), Supreme Court of Canada (SCC), “Webcast of the Hearing on 2016-01-11" (22 January, 2018) at 1:25:40 to 1:25:45; 1:15:36 to 1:16:03.

3.    College of Physicians and Surgeons of Nova Scotia, Professional Standards Regarding Medical Assistance in Dying (MAiD), Halifax: CPSNS, (5 May, 2021) at para 4.3, 13.2.

4.    College of Physicians and Surgeons of Nova Scotia, Professional Standards Regarding Obligations for Services for Patients, Halifax: CPSNS, (27 May, 2022) at para 6(g).

5.    College of Physicians and Surgeons of Nova Scotia, Professional Standards Regarding Medical Assistance in Dying (MAiD), Halifax: CPSNS, (13 Oct, 2017) at para 4.2, 9.1.2.

6.    Protection of Conscience Project, “Submission to the College of Physicians and Surgeons of Nova Scotia Re: Standard of Practice: Physician Assisted Death" (6 February, 2016), Protection of Conscience Project (website) at IV.

7.    Hafsa Arif, “N.S. risks losing dozens of physicians over a potential new policy”, CTV News (CTV News (14 March, 2024) [Arif 2024]

8.    James W Maddock, “Humanizing health care services: The practice of medicine as a moral enterprise”, (1973) 65:6 J Natl Med Assoc 500 – 504.

9.    Mary Neal & Sara Fovargue, “Conscience and agent-integrity: a defence of conscience based exemptions in the health care context” (2016) 24:4 Med Law Rev 544– 570 at 560.

10.    Sean Murphy et al, “The Declaration of Geneva: Conscience, Dignity and Good Medical Practice” (2020) 66:4 World Med J 43 at 41.

11.    CMDA Canada, “Understanding Conscience in Health Care” (21 April, 2021), YouTube.

12.    Daniel Weinstock, “Conscientious Refusal and Health Professionals: Does Religion Make a Difference?” (2014) 28:8 Bioethics 11–12 at 11.

13.    Peter Cowan, “'Not acceptable': Minister blasts suggestion of assisted suicide for person with disability”, CBC News (27 July, 2017).

14.    Letter from Dr. Andrew Green, Deputy Chair, BMA Medical Ethics Committee to Deputy Tom Binet, Jersey Minister for Health and Social Services (7 February, 2024) re: Assisted Dying in Jersey at 4 [Green to Binet], citing Marie-Eve Bouthillier & Lucie Opatrny, “A qualitative study of physicians’ conscientious objections to medical aid in dying” (2019) 33(9) Palliative Medicine 1212-1220 [Bouthillier & Opatrny].

15.    Ewan C. Goligher, "Understanding Conscience in Health Care" (21 April, 2021) Christian Medical and Dental Association of Canada (YouTube) at 00h:03m:00s to 00h:07m:12s.

16.    Sharon Kirkey, “‘Take my name off the list, I can't do any more’: Some doctors backing out of assisted death”, National Post (26 February, 2017).  See also Green to Binet and Bouthillier & Opatrny, supra note 14.

17.    Conscientious Objection, supra note 1 at 2.

18.    College of Physicians and Surgeons of Ontario, Human Rights in the Provision of Health Services, Toronto: CPSO, 2023 at endnote 1.

19.    Conscientious Objection, supra note 1 at 2.

20.    Sean Murphy, “Canadian Medical Association and Referral for Morally Contested Procedures” (20 October, 2022), Protection of Conscience Project (website) at 2018.

21.    The Canadian Medical Association, Code of Ethics and Professionalism, Ottawa: CMA, 8 December, 2018 [CMA Code 2018].

22.    CMA and Referral, supra note 20.

23.    Canadian Medical Association, "Submission to the College of Physicians and Surgeons of Ontario: Consultation on CPSO Interim Guidance on Physician-Assisted Death" (13 January, 2016), Protection of Conscience Project (website) [CMA 2016].

24.    Ibid.

25.    Ibid.

26.    Canadian Association of MAID Assessors and Providers, "Written Brief to the Standing Committee on Justice and Human Rights House of Commons Canada" (5 November, 2020), Parliament of Canada (website) [CAMAP Brief] at 3.

27.    College of Physicians and Surgeons of British Columbia, Practice Standard: Medical Assistance in Dying, Vancouver: CPSBC (10 May, 2022). The “effective transfer of care" in the CPSBC Practice Standard is defined as "advising patients that other physicians may be available to see them, suggesting the patient visit an alternate physician or service, and if authorized by the patient, transferring the medical records as required." In other words, objecting physicians need not initiate a transfer, but must cooperate in a patient-initiated transfer if asked to forward the patient's medical record. This is the usual requirement in foreign jurisdictions where euthanasia and assisted suicide are permitted, and, in the Project’s experience, is not problematic.

28.    CMA 2016, supra note 23.

29.    Letter from Cindy Forbes and Jeff Blackmer, Canadian Medical Association, to Robert Oliphant, MP and Hon. Kenneth Ogilvie, PC MP, Co-Chairs Special Joint Committee on Physician-Assisted Dying, Parliament of Canada (4 February, 2016) re: Correcting misinformation about the position of the Canadian Medical Association.

30.    Canadian Medical Association, “Supporting the enactment of Bill C-14, Medical Assistance in Dying: Submission to the House of Commons Standing Committee on Justice and Human Rights” (2 May, 2016) at 3.

31.    The Canadian Medical Association, Policy: Medical Assistance in Dying, Ottawa: CMA; May, 2017 at Addressing Adherence to Moral Commitments, (a) .

32.   Ibid at Relevant Foundational Considerations: 3. Respect for freedom of conscience.

33.   Sean Murphy, “Physician freedom of conscience in Alberta” (18 September, 2020), Protection of Conscience Project (website) at 3–6. The Project Administrator has been following this issue and has corresponded periodically with the CPSA and Alberta Medical Association since 2001.

34.    Letter from Richard G.R. Johnson, President, Alberta Medical Association to Sean Murphy, Administrator, Protection of Conscience Project (6 March 2015).

35.    CFI Team, “Ethical Investing” (2015–2024) Corporate Finance Institute (website).

36.    Holly Fernandez Lynch, Conflicts of Conscience in Health Care: An Institutional Compromise (Cambridge, London: The MIT Press, 2008) at 229.

37.    Carolyn McLeod, “Demanding Referral in the Wake of Conscientious Objection to Abortion” (2006) Comparative Program on Health Law and Society, University of Toronto, Munk Centre for International Studies, Lupina Foundation Working Papers Series 2004–2005 at 132.

38.    Carolyn McLeod, “Referral in the Wake of Conscientious Objection to Abortion” (2008) 23:4 Hypatia 30-47 at 30.

39.    Ibid at 31.

40.    Ibid at 42.

41.    Ibid at 42 (emphasis added).

42.    Ibid at 40.

43.    Lori Kantymir & Carolyn McLeod, “Justification for Conscience Exemptions in Health Care” (2014) 28:1 Bioethics 16-23 at 18 (emphasis added).

44.    Ibid at 22 (noting that a pro-life panel might excuse someone from providing abortion “on the grounds that abortions are immoral, which is (arguably) false, at least about most abortions”).

45.    Ibid at 21 (arguing it would be unfair to refuse to exempt practitioners from a duty to provide sex selective abortions).

46.    Jocelyn Downie, Carolyn McLeod & Jacquelyn Shaw, “Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons” (2013) 21:3 Health L Rev 28-32 at §5.3 (“Legally permissible and publicly funded health services” is the term used, but “legally permissible” is superfluous because there can be no duty to do something illegal, and illegal health services would not be publicly funded. The policy cites physicians’ fiduciary obligations, but those pertain to all health services, many of which are not publicly funded. Since the model policy demanded compulsory referral only for publicly funded services, it was public funding alone that trumped freedom of conscience).

47.    Letter from Bryan Salte to the Registrars of Colleges of Physicians and Surgeons in Canada. Redacted in Document 200/14, College of Physicians and Surgeons of Saskatchewan, “Report to Council from the Registrar” (31 July, 2014) at 8 .

48.    Ibid at 8, para 5.

49.    Protection of Conscience Project, “Submission to the College of Physicians and Surgeons of Saskatchewan Re: Conscientious Refusal: Appendix ‘A’– Origin of the CPSS Draft Policy Conscientious Refusal” (5 March, 2015), Protection of Conscience Project (website).

50.    Protection of Conscience Project, “Submission to the College of Physicians and Surgeons of Nova Scotia Re: Standard of Practice: Physician Assisted Death" (6 February, 2016), Protection of Conscience Project (website) at IV.

51.    Margaret Beazley, “2021 Michael O’Dea Oration” (Memorial lecture delivered virtually at the National School of Law and Business, University of Notre Dame Australia, 20 October 2021) at para 7–8, 13, 15, 20.

52.   Salte 2014, supra note 47 at 8, para 5. 

53.  Arif 2024, supra note 7.

54.    Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario 2019 ONCA 393 (CanLII) at para 184.

55.    "Organ trade GP suspended", BBC News (15 October, 2002).

56.    Bucklew v Precythe 139 S Ct 1112 [2019] (Brief of American Medical Association, Amicus Curiae, In Support of Neither Party at 11, last para).

57.    Alberta Health Services, "811 Health Link: Health Advice 24/7" (2023), Alberta Health Services (website).

58.    Ontario Ministry of Health, News Release, “Ontario Launches New Tool to Connect People to Nurses and Other Health Services from Anywhere at Any Time” (22 April, 2022).

59.    College of Paramedics of Nova Scotia, “CPNS Guidance on Medical Assistance in Dying (MAiD)”, College of Paramedics of Nova Scotia (website).

60.   “BC Emergency Health Services Clinical Practice Guidelines 2021" (February, 2021), BC Emergency Health Services (website) at P08: Medical Assistance in Dying (MAID).

61.   Saskatchewan College of Paramedics, “Medical Assistance in Dying (MAID): Guidelines for Paramedic Practitioners” (2 May 2017), Saskatchewan College of Paramedics (website).

62.   Alberta College of Paramedics, “Position Statement: Medical Assistance in Dying” (October, 2017), Alberta College of Paramedics (website).

63.    Alberta Health Services, “EMS requests related to medical assistance in dying events” (12 June, 2019), Alberta Health Services (website).

64.    Jonathan Reggler, Tanja Daws, “Medical Assistance in Dying (MAID) Protocols and Procedures Handbook 2017 2nd edition”, General Practice Services Committee (website) at 16.

65.    General Practice Services Committee, “Who We Are” (2020), General Practice Services Committee (website).

66.    Julie Campbell, “Taking the Mystery Out of MAID” (Powerpoint presentation delivered at the meeting of the Elgin South West Primary Care Alliance, 7 June, 2018), South West Primary Care Alliance (website) at slide 25.

67.    “Protection of Conscience Project Submission to the (Federal) External Panel on Options for a Legislative Response to Carter v. Canada: Direct Consultation (Project Administrator) (26 October, 2015), Protection of Conscience Project (website) at “Urgent situations.”

68.    Quebec, Assemblée Nationale, Journal des débats de la Commission permanente de la santé et des services sociaux, 40th Législature , 1st Sess, Vol. 43 No. 34 (17 septembre, 2013) at 51–52 (Mme. Véronique Hivon & Dianne Lamarre).  The Project has provided what appears to be the only English translation available: see “Consultations & hearings on Quebec Bill 52, College of Pharmacists of Quebec: Dianne Lamarre, Manon Lambert. Tuesday 17 September 2013 - Vol. 43 no. 34", Protection of Conscience Project (website) at T#85–98.

69.    The College of Physicians and Surgeons of Manitoba, Standards of Practice in Medicine, Winnipeg: 2019 (emphasis added).

70.    Thara Kumar & Richard Hoang, "Dying to Know More: Death and Dying in the ED in the Era of MAiD" (20 September, 2018), EM Ottawa (blog) at Case 3.

71.    Criminal Code, RSC 1985, c C-46 (18 October, 2022), Government of Canada, Justice Laws (website) at s 241.2(3).

72.    F Bakewell, “Medical Assistance in Dying (MAID) in the ED: Implications for EM Practice” (22 June, 2016) CanadiEM (blog).

73.    F Bakewell & VN Naik, "Complications with Medical Assistance in Dying (MAID) in the Community in Canada: Review and Recommendations" (28 March, 2019), Canadian Association of MAiD Assessors and Providers (website) at 7.

74.    General Medical Council, Good Medical Practice, Manchester: GMC, 2013 at para 26.

75.    Agus Purwadianto et al, Indonesian Medical Ethics Code, 2012 at 50.

76.    The Israeli Medical Association, Ethics Board Rules and Position Papers, Ramat Gan: IMA, 2018 at 85.

77.    The Nepal Medical Council, Code of Ethics and Professional Conduct-2017, Kathmandu: NMC, 2017 at 5.

78.    The New Zealand Medical Association, Code of Ethics for the New Zealand Medical Profession, Wellington: NZMA, 2020 at art 75.

79.    The Saudi Commission for Health Specialties, Department of Medical Education & Postgraduate Studies, Code of Ethics for Healthcare Practitioners, translated by Ghaiath Hussein, Riyadh: SCHS, 2014 at 47.

80.    Memorandum from Ordre des pharmaciens du Quebec to the Committee on Health and Social Services of the Quebec National Assembly - Mémoire relatif au projet de loin no. 52 (17 September 2013), at 13–14, note 11.