Physicians and the Ontario Human Rights Code

Ontario Human Rights Commission attempts to suppress freedom of conscience (August-September, 2008)

Interim response to Physicians and the Ontario Human Rights Code

August 18, 2008

Council
College of Physicians and Surgeons of Ontario

RE: Proposed changes to College human rights policy - "Physicians and the Ontario Human Rights Code"

We are all just learning how to "do" a pluralistic society and it is not surprising that we are having some growing pains. Parts of the Executive Committee's recent draft policy entitled "Physicians and the Ontario Human Rights Code" demonstrate that errors are easily made in the process of codifying the duties of physicians, tolerance, and ideals of patient autonomy.

The last time that a serious attempt was made to make the suppression of medical conscience respectable was the furiously opposed, and in effect finally officially renounced, 2006 CMAJ guest editorial by a pair of legal academics who were dismissive of medical qualms about abortion and obtuse about the reality that referring for a procedure means medical and ethical implication in the procedure.[1]

Ironically, it is the laudable impulse to serve the diversity of our patients' needs which has coincided with a mounting intolerance of diversity in our own medical colleagues' sincerely held principles. We recognize and affirm the marginalized patient whose life has taken a turn away from the mainstream, but the draft policy would marginalize the physician whose life-affirming ethics endure while the mainstream turns away.

A consumerist approach to the acquisition of services, long gathering strength inside our medical system, was expressed a century ago by the commercial philosophy that "the customer is always right." Our current challenge is to see the occasions of medical arrogance and paternalism of the past out the door without adopting the supine posture implied by the College's draft policy and backgrounder. As these documents would seem to see it, a physician can properly back away from an ethically troubling request only by pleading incompetence. The common scenario where the exercise of ethical competence and medical judgment frustrates a patient's immediate wishes is inadequately supported and explored.

Moral beliefs are indeed "central to the lives of physicians and their patients," as the draft document states, including to the lives of those who think of themselves as non-religious. In particular, we should have no tolerance for amoral physicians. Unfortunately, the document glides into a fundamental exercise in question-begging by assuming the true medical necessity of the contentious services for which it strives to guarantee practical, if not moral, acquiescence.

This controversy is not about the delivery of life-saving care or the correction of physical pathology. Real-life examples of the conflicts the College wishes to address almost always involve a patient preference for a medical service which will subjectively enhance their quality of life or remove an impediment to a desired lifestyle, with no credible claim of medical emergency. Such encounters may sometimes call for a tactful and respectful disengagement of the patient from the physician, but hardly the pre-emptive renunciation of freedom of conscience implied by the College document.

Thus the draft policy's anticipation that compliant physicians will be ready to "set aside their personal beliefs" and its warning that decisions "based on moral or religious belief" may "constitute professional misconduct" seems particularly intemperate, a retrograde and illiberal lurch rather than a measured and sensitive evolution of standards.

The CPSO has put itself out on a limb with this undoubtedly well-meaning exercise in policy revision. The spirit of the draft document would, for instance, impugn the President of l'Association medicale de Quebec, who recently defended obstetricians who decline to alter their call schedules to accommodate patients who do not want to be cared for by a male.[2]

The College may also want to reconsider the implications of proposing policy revisions in the explicit context of the curious prediction that human rights complaints in Ontario will soon skyrocket to 3000 per year. Does the College believe that the Human Rights Commission system will bring better standards of medical practice than the College has previously promoted? Has the College complaints process hitherto been deficient in addressing public concerns about medical issues?

The College documents present an unseemly image of the College preparing to shine its shoes before inspection by a higher authority. And yet human rights commissions, as you are undoubtedly aware, are increasingly scrutinized for various abuses which they themselves engender. Alan Borovoy, the pre-eminent Canadian civil liberties champion, recently lamented that " during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech."[3] Others have criticized the asymmetrically onerous burdens, of proof and of legal expense, which the commissions cause to fall on defendants.

In short, it is still unclear how human rights commissions and codes are going to find a good fit with our traditions of fairness, equality, and freedom. It is not a foregone conclusion that they are an improvement on the common law. The best possible role that the CPSO could play in these turbulent seas would be as a beacon of moderation. It should not lose confidence in the capacity of physicians to exercise their fundamental freedoms in a manner befitting responsible professionals in a free and democratic society, nor in the principle that a free society is best served by a humble but independent medical profession. The College may choose to trim its sails in the stiffening breeze of litigiousness fostered by human rights commissions, but it need not throw its cargo overboard.

Authoritarian and coercive edicts like these draft policy documents suggest a fear of freedom that is unbecoming of a regulatory institution in a democratic country. They also raise serious questions about the CPSO's understanding of, and competence to deal with, issues of freedom, pluralism, accommodation and tolerance.

The future will be filled with radical technological changes and social innovations. It would be naïve to expect them all to be benign. It is vitally important to our society that members of our profession, like their fellow citizens, remain free to adhere to their conscientious convictions in choosing to participate in, ignore, or oppose any part of the torrent of change.

We strongly advise the Executive Council of the CPSO to study this policy in much greater depth before proposing changes to it. A further submission will follow.

Respectfully submitted,

Will Johnston, MD, President
Canadian Physicians for Life
PO Box 1289
Richmond ON K0A 2Z0
Ph/Fax: 613-728-5433

[1] CMAJ • July 4, 2006 • 175(1) page 9  

[2] [Cyberpress Article]

[3] The Calgary Herald, "Hearing complaint alters rights body's mandate," A. Alan Borovoy, March 16, 2006.