Physicians and the Ontario Human Rights Code
Ontario Human Rights Commission attempts to suppress freedom of
conscience (August-September, 2008)
Submission to CPSO Re:Physicians and the Ontario Human Rights Code
Reproduced with permission
September 11, 2008
Policy Department
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario, M5G 2E2
Dear Members of the Policy Department and Council:
Re: Draft policy document, "Physicians and the Ontario Human Rights Code"
As a nationwide group of pro-life physicians, we have viewed the recent
interaction between the Ontario Human Rights Commission and the College of
Physicians and Surgeons of Ontario with grave concern.
[i]Reassurances from the College notwithstanding [ii], the freedom of physicians to avoid direct participation in contentious
medical acts, and also to avoid de facto participation via coerced referral, is
under attack.
The practice of abortion provides the archetype for this conflict. Abortion
is not illegal in Canada and physicians can carry out abortions without
incurring legal liability. Any pregnant Canadian woman has the freedom to
request an abortion within the public health system to destroy and remove the
human being within her if participating in the pregnancy does not fit her
aspirations for the conduct of her life. Likewise, physicians who have no
ethical or moral reservations about destroying unborn human life are free to
make that known and the pregnant woman is free to seek out and be treated by
these physicians.
Correlative to the freedoms of both pregnant women and pro-choice physicians,
a Canadian pro-life physician has hitherto been free to avoid participation in
the destruction of any human life, which would be a serious breach of his or her
moral beliefs and ethics, and has been free to make this position known to
patients or prospective patients. In declining to refer a woman for an abortion,
the physician who objects to abortion is exercising his or her freedom to choose
not to be a segment of that woman's self-chosen road to an abortion.
It is not the responsibility of any physician to manage, promote, or enhance
access to a procedure which he or she finds medically harmful and morally
repugnant. The ethical bankruptcy of any society which would punish physicians
who object to abortion, and the imprudence of doctors sitting in regulatory
institutions who would threaten to punish their objecting colleagues, should be
obvious.
To stimulate the moral imagination, we offer this analogy: Suppose you live
in a society in which slavery is legal but you think it is wrong. Someone comes
to you, knowing that you are a knowledgeable native of the region, and asks
directions to the nearest and most convenient slave market. Should you be
punished if you won't give directions? Is it not obvious that directing the
aspiring slave owner to the market means facilitating the purchase of a human
being, a wrongful act? What would you think of neighbours who wanted to
deprive you of your livelihood or seize your assets and home because they were
offended by your objection to slavery and they wanted to enforce your
obedience to their way of thinking?
We have entered an era in which radical self-determination is endorsed by
elites and fostered by the law. Surgery which would formerly have been seen as
mutilation is now portrayed as a right necessary for self-fulfillment. The
protection of human rights is the responsibility of us all, and the special
interest of human rights commissions and tribunals who take their cues from a
list of prohibited grounds of discrimination, a list with a tendency to grow.
Problems arise, however, when such bodies want not only to protect certain
lifestyles and designated groups from adversity but also to force others, such
as physicians, to carry out acts to which they have moral and ethical
objections, or which are contrary to their vision of good professional practice.
Often such objections are dismissed on the grounds that they are connected with
religion and that religious belief has no place in the public square or the
practice of a profession. This assertion does not bear close scrutiny, and the
presumption that all such objections are based on religious belief is erroneous.
For example, if physical stature became a prohibited ground, parents could
demand human growth hormone supplements for constitutionally short children. You
might have no religiously-based objection to height augmentation and it might
have been proven safe, or the principle that safety concerns are subsidiary
might have been enshrined in legal precedent, but you still might have qualms
about tinkering with the natural stature of the child in this way. What would be
your defense? After all, under a human rights commission regime you couldn't
just say "I need to study this" or "I don't have any competence in this field of
practice" without being coerced to refer - and in this hypothetical case,
treatment lengthily delayed would be treatment denied.
The argument, sometimes heard, that it is because Canadian physicians work in
a publicly funded system that HRCs have a responsibility to police them is
particularly specious. That Canadian medicare for physician services is
essentially publicly funded but privately administered is irrelevant to the
issues which could as easily arise in a completely user-pay system. The receipt
of public funds does not diminish the civil rights of unemployed people on
income assistance - should doctors working for public money not have the same
rights?
The importance of health care makes the practice of medicine a perennial
topic of public discussion and many of our social controversies are intensified
when placed in a medical context. This is especially evident when social
activists seek test cases to bring before human rights commissions, often for
causes unrelated to the provision of health care. This has special implications
for physicians who may be targeted for having unfashionable, or at least
unprotected, moral, social, and medical opinions. It has been widely noticed
that becoming enmeshed in the tribunal system imposes a considerable burden on
the defendant - that, regardless of the final outcome, "the process is the
punishment."
It would seem that some conceive of the public sphere as a playing field onto
which citizens may venture only if they are willing to obey rules that can be
changed at any time by a committee (and, we suggest, a committee that doesn't
even understand the nature of the game being played). On this view, our actions
on the field should simply reflect the rules, without intrusion by our private
thoughts and beliefs. We are expected to accept that we can be removed from the
field and fined for infractions at the discretion of a referee who is a
surrogate for, and takes orders from, the committee.
In reality, we live our lives on a continuous spectrum between the public and
the private, in a condition of continuous intermingling of public acts and
private thoughts. Human rights commissions must take this into account. Their
goal should be to respect the rights of everyone, especially on matters of
profound moral belief. Of course it is true that, in any functional society, the
freedom to hold beliefs is broader than the freedom to act on them. We are not
debating the necessity of rules that limit actions, since everyone can agree
that a functional society needs rules. It is the precise nature of the rules and
the sharing of the onus to limit oneself by rules which is under
discussion.
Thus the concept of "accommodation" must be restored to its origins in mutual
good faith. Coercion must be assiduously avoided, especially in matters of deep
moral conscience. The individual humanity of physicians, no less than patients,
must be respected. On the contrary, in the position taken by the OHRC one looks
in vain for a balancing emphasis on the duty of the Canadian health care system
to accommodate the religious or moral scruples of its employees.
Why should every industry except health care have to accommodate its
employees, right up to the point of "undue hardship," regarding the
protected-grounds-of-discrimination list?
[iii]Real and unjust discrimination is ethically wrong because it denies
access to society's good things - such as education or employment - to those who
do not "measure up" to some arbitrary and irrelevant standard like skin colour.
The law rightly condemns and seeks to prevent it. There is a true consensus that
education is a good thing, and that employment is a good thing.
But nothing of the sort can be said about morally controversial procedures
like abortion, euthanasia, or artificial reproduction. If there is a conflict
between a physician and patient as a result of a refusal to facilitate such a
procedure for reasons of conscience, the conflict originates not in
discrimination but in a disagreement between the physician and the patient about
what constitutes a good thing.
Sometimes the disagreement results from the professional perspective,
knowledge and experience of the physician, even if he or she does not,
in principle, object to the procedure in question. Consider the request of a 20
year old man for a vasectomy or a 20 year old woman for a tubal ligation. Such
surgery has permanent implications for the patient which could be bitterly
regretted later in life. It would be, in our view, a misuse of the word
"discrimination" to characterize a physician's conscientious refusal to
facilitate such surgery as wrongful "discrimination on the basis of a prohibited
ground" (age or sex). If this is discrimination, it is only so in the sense that
one discriminates between a prudent and an imprudent act, or between acts that
do harm and those that do not.
When physician and patient disagree about whether or not a procedure is a
good thing, the OHRC's Chief Commissioner herself, Barbara Hall, apparently
expects the CPSO to coerce and punish the physician for failing to agree with
the patient, on the grounds that the College should endorse and enforce the
patient's views at the serious cost of breaching the human rights of the
physician. This is precisely what Madam Justice Bertha Wilson said should never
be done, for that would be to "deny freedom of conscience to some, to treat them
as means to an end, to deprive them . . . of their 'essential humanity'."
[iv] We strongly object to the attempt by the OHRC to subvert thousands of
years of medical ethics and to deny the essential humanity of physicians by
suppressing their freedom to act in accord with their deepest moral beliefs,
merely to avoid the inconvenience some patients might experience in having to
"shop around" for morally controversial procedures.
When considering codes of behaviour, as a general principle freedoms may only
be infringed if the harm caused by the infringement is not
disproportionate to the harm the infringement seeks to prevent. The suppression
of conscience, religion, and free speech proposed by the OHRC is recklessly
disproportionate to any conceivable harm which inconvenience or hurt feelings
might represent to some patients. Professional standards and public safety can
be maintained without compromising physicians' freedom of conscience, and in
fact it is our duty to work together to achieve this.
[v]Importantly, this situation could be seen by the CPSO as an opportunity to
strengthen the ethical practice of medicine in Canada by adopting standards of
physician conscience protection which are truly reflective of the inclusive,
diverse, and pluralistic society we should all be striving to create. The CPSO
must not abdicate its obligation to bring medical and ethical judgment to the
regulation of the medical profession and the practice of medicine in Ontario. It
is inconsistent to expect ethical conduct from physicians who are told to check
their personal moral and ethical beliefs at the door. The College must refuse to
become an agent for the promotion of such views. We wish the College well in its
difficult but necessary review of this pivotal issue.
Yours respectfully, Will Johnston, MD
On behalf of Canadian
Physicians for Life
ENDNOTES:
[i] Submission of the Ontario Human Rights Commission to
the College of Physicians and Surgeons of Ontario Regarding the draft policy,
"Physicians and the Ontario Human Rights Code,"
Note 10.
[ii] CPSO,
Notice to the Profession (August, 2008)
[iii]
"The Undue Hardship Standard" [iv] R. v.
Morgentaler (1988) 1 S.C.R. 178-179 (Supreme Court of Canada)
[v] Genuis SJ
"Dismembering the
Ethical Physician" Postgraduate Medical Journal
2006;82:233-238; doi:10.1136/pgmj.2005.037754.