Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Physicians and the Ontario Human Rights Code

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

Denying doctors free conscience unconscionable

Reproduced with permission
Margaret Somerville *
Samuel Gale Professor of Law and Professor in the Faculty of Medicine, McGill University's Centre for Medicine, Ethics and Law.

A shorter version of this article appeared in the Calgary Herald on 17 September, 2008

. . .the problem lies in classifying as discrimination a refusal to provide or refer for a service, such as abortion, euthanasia, or artificial reproduction, that the physician believes - and many other Canadians believe - is morally and ethically wrong. Such refusals should be treated differently from refusals of morally and ethically neutral services . . .

The College of Physicians and Surgeons of Ontario (CPSO - the regulatory and licensing authority for physicians and surgeons practicing in Ontario) has issued a draft policy entitled "Physicians and the Ontario Human Rights Code". It deals with physicians' obligations under the Code with respect to engaging in medical acts to which they may have a conscientious objection and referring patients for such procedures.

Now, it seems, this matter is also under consideration in Alberta. The College of Physicians and Surgeons of Alberta (CPSA) began a consultation process Sept. 2 which ends Nov. 3, and, it's reported, among other issues physicians' freedom of conscience will be considered. Consequently, what happens in Ontario is of more than usual importance to all of us.

The Ontario policy states that "[p]hysicians should be aware that decisions to restrict medical services offered, to accept individuals as patients or to end physician-patient relationships that are based on moral or religious belief may contravene the Code, and/or constitute professional misconduct." In short, the policy makes clear that some conscientious objections may not be tolerated by the CPSO.

The Ontario Human Rights Commission (OHRC) elaborated on the policy by pointing out that a refusal to provide a service requested by the patient can only be justified if the physician does not have the "clinical competence" to perform it and that a duty to refer exists in such cases. The Commission also warns that "physicians should not express personal judgments about the beliefs, lifestyle, identity or characteristics of the patient or potential patient".

The College also puts physicians on notice that if their conduct constitutes discrimination under the Human Rights Code, there is no defence based on moral or religious belief: A "physician's refusal ... on the basis of a prohibited ground is prima facie discrimination, even if the refusal is based on the physician's moral or religious belief. This means that the physician could be subject to a human rights complaint."

And, if the physician's refusal is also professional misconduct, it would result in disciplinary proceedings and penalties ranging from reprimands, to fines and loss of a license to practice medicine.

The latest development is that the Ontario Medical Association has spoken out for protection of physicians' freedom of conscience and against the policy, which is scheduled to be voted on by the CPSO on September 18th. The CPSO say they have modified the policy to take account of the OMA's concerns, but are reported to be refusing to release the modified document before it is voted on.

Needless to say, the "state of affairs" described above has caused deep concern for many physicians. What has led to it this approach and what might be the consequences of adopting it?

First, it reflects a recently emerging view of some people that physicians are mere technicians able to provide services that patients want and have a right to access. Physicians have a duty to provide these services and no right to bring their moral or ethical reservations into play. To do so is discrimination.

Think of having your car repaired: For a mechanic to refuse to service your car just because you were a woman would be discrimination and a human rights offence. Some say physicians' refusal of medical services for moral or ethical reasons is the same thing.

Unlike the mechanic, however, a physician who refuses to be involved, for instance, in abortion, is not providing the service to one patient but not another, or basing his refusal on any characteristic of the patient. Rather, he is refusing the service to all patients and doing so because of the nature of the procedure, which he believes is morally and ethically wrong.

And, unlike medicine, usually car repairs don't raise moral and ethical issues. But what if you were a bank robber preparing a getaway car and told the mechanic that? Suddenly automotive repair would become an ethical and moral issue. Would a refusal still be wrong or might it even be required? And referring the bank robber to another mechanic would make you complicit in the wrongdoing.

The practice of medicine always and unavoidably involves ethical and moral issues, although when we all agree on how they should be dealt with, we might not be consciously aware of them in day-to-day practice. It's only when something goes wrong or there is a conflict of values that the ethical issues flash up on the big screen. Treating physicians as mere technicians fails completely to take that omnipresent ethical aspect into account.

Treating physicians as mere technicians is also the antithesis of the traditional concept of a physician, as a professional with ethical and legal obligations to exercise good professional judgment. Most notable among those obligations is to "first do no harm", which means that a physician may not simply fulfill a patient's request, but must make an independent judgment as to its acceptability.

At its extreme, treating physicians as mere technicians can result in an argument that bizarre requests should be fulfilled: For instance, some people argue that if a person wants their healthy right leg amputated, they have a right to do so. On a more everyday level, patients' lifestyle choices - the OHRC warns failure to honour them could be discrimination - can be a problem. Some women who rejected physicians' lifestyle advice to change their diet if they wanted to lose weight and instead demanded Phenphen, a weight-loss drug, died as a result.

Treating physicians as mere technicians denies that respect is required for physicians' freedom of conscience and their ethical and moral values. Quite apart from the serious wrong to physicians that denial inherently constitutes, such an understanding of the physician- patient relationship would do a great disservice, not only, to the medical profession and society in general, but also to patients, because maintaining respect in any human encounter, including for patients in the physician-patient encounter, requires that respect be mutual.

In stark contrast to fostering such mutual respect, here's the OHRC's startling view of a physician's obligation in the physician-patient encounter: "It is the Commission's position that doctors, as providers of services that are not religious in nature, must essentially "check their personal views at the door" in providing medical care." The OHRC makes clear that physicians' "personal views" include their deepest and most important ethical and moral beliefs and values. Obviously, that raises serious problems for physicians, but again it also raises problems for patients: Would any of us really want to be treated by a physician who had complied with a directive to "park your ethics and values with your car outside the surgery"?

It's true that sometimes acting on personal views can be discrimination: Refusing to treat a patient simply because they were homosexual is discrimination and wrong. But that's not the issue here. Rather, the problem lies in classifying as discrimination a refusal to provide or refer for a service, such as abortion, euthanasia, or artificial reproduction, that the physician believes - and many other Canadians believe - is morally and ethically wrong. Such refusals should be treated differently from refusals of morally and ethically neutral services, such as refusals to rent an apartment to a person or serve them in a restaurant on the basis of a prohibited ground of discrimination. We can all agree that is wrong.

Although many Canadians believe that a big difference between the United States and Canada is that Canadians have a consensus on basic values and Americans don't, this issue of physicians' freedom of conscience might show us that that is not true. In short, we might also be involved in the culture wars, but in a much less high profile way.

The reality is that in many mature Western democracies, we have many competing societal values, with abortion at the eye of the storm. For instance, even leaving aside the United States, exactly the same issue of forcing physicians, who have conscientious objections, to do or refer for an abortion has just erupted in the state of Victoria in Australia.

Abortion is so central to our values disputes, because respect for human life is the foundational value of our kind of society and abortion involves defining what that respect requires.

In Canada, having achieved a black hole on abortion law - there is no law - pro-choice advocates are not content with having the freedom to act according to their values; they want to make others, for whom it would be a breach of their values, act likewise. And they want to have their beliefs and values publicly affirmed. Obtaining official rulings from Human Rights tribunals that physicians have no freedom of conscience protection regarding abortion establishes that their values should predominate as the societal norms.

In short, these people claim freedom of values belief for themselves, but refuse to respect others' freedom. That's why they will not tolerate a respect-for-freedom-of-conscience exception. No matter what our values or views, we should all be concerned by such totalitarianism.