Postscript for the Journal of Obstetrics and Gynaecology Canada:
Morgentaler vs. Professors Cook and Dickens
Responding to Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can
2004; 26(2)112; Cook RJ, Dickens BM, Access to emergency contraception
[letter] J.Obstet Gynaecol Can 2004; 26(8):706.
Introduction
. . . the arguments of
Professors Cook and Dickens for mandatory referral
are unsupported and even contradicted by their own
legal and ethical references. Regulatory officials
with the power to enforce the views of Cook and
Dickens are unlikely to discover this in the pages
of the Journal,
since, by editorial fiat, the discussion was terminated with
the publication of their 'final word' on the subject. Here,
then, is the postscript to the discussion, supplemented by
developments in the United Kingdom and Belgium that have a
bearing on the issue. . .
An article about the morning after pill by law
professors RJ Cook and BM Dickens in the Journal
of Obstetrics and Gynaecology Canada1
elicited a protest from Dr. Howard Bright of
Chilliwack, B.C.. Dr. Bright contested their
statement that physicians are obliged to refer for
treatments to which they are morally opposed. "There
is no obligation to refer," he wrote, citing the Code of Ethics of the Canadian Medical
Association.2
Nonetheless, Cook and Dickens stuck to their
claim. "Physicians who feel entitled to subordinate
their patient's desire for well-being to the
service of their own personal morality or
conscience," they stated, "should not practise
clinical medicine"3
(Emphasis added).
The assertion that a patient's desire should be
an ordering principle in the practice of medicine
has little to recommend it. More important, the
arguments of Professors Cook and Dickens for
mandatory referral are unsupported and even
contradicted by their own legal and ethical
references. Regulatory officials with the power to
enforce the views of Cook and Dickens are unlikely
to discover this in the pages of the Journal,
since, by editorial fiat, the discussion was
terminated with the publication of their 'final
word' on thesubject.4
Here, then, is the postscript to the discussion,
supplemented by developments in the United Kingdom
and Belgium that have a bearing on the issue.
'Referral and abandonment'
The only authority cited by Professors Cook and
Dickens to support their avowal that courts
"continue" to demand referral was a less than
contemporary ruling inZimmer v. Ringrose, a
23 year old case from the Alberta Court ofAppeal.5
The published letter from the Project pointed
out that Zimmer addressed the failure to
obtain informed consent to silver nitrate
sterilization and failure to provide adequate
follow-up care, not referral. The authors countered
that the Administrator had misrepresented legal
cases because he had failed to consider "historical
background jurisprudence" that shapes court
decisions. Summarizing what they believed to be the
"continuing relevance of the Zimmer case,"
they claimed that failure to refer for abortion is
"negligence close to abandonment."
[T]he "failure to provide
adequate follow-up care" that Mr. Murphy
acknowledges consisted in the defendant physician's
failure to refer his patient to another physician
who could facilitate the abortion she wanted. The
Court found that this failure was negligence close
to abandonment . . . a wilful failure or refusal to
refer . . . may justify an award of aggravated or
exemplary damages. (emphasis added6
However, they cited no authorities to support
their understanding of the case. Moreover, the
rulings followed and referred to by the Court of
Appeal in Zimmer were about informed consent, not
freedom of conscience.7
At the risk of once more being accused of
misrepresentation, the only relevant "historical
background jurisprudence" appears to be the earlier
decision of the trial court in Zimmer, and
this does not assist Cook and Dickens. The failure
to provide adequate follow-up care had two elements
- not one, as the authors imply. The first was the
physician's failure "to follow his patient's
progress by conducting regular medical examinations
during the summer of 1973," an omission the trial
judge found to be "inconsistent with good clinical
practice" that contributed to the fact that her
pregnancy was not detected earlier.08
The second element was not the "failure to refer"
alleged by the authors; the physician did not refuse
or fail to refer the patient for abortion. In fact,
she understood from him that she should have an
abortion as soon as possible.09
Nor was the issue a refusal to refer "for the
abortion she wanted" (emphasis added). It was,
rather, his decision to refer the woman for an
abortion in Seattle rather than Edmonton. He
testified that he advised her to get an abortion in
Seattle to avoid the delay involved in Edmonton,
where, he said, it was then necessary to obtain a
psychiatric report to justify the procedure. He also
believed that the suction procedure used in Seattle
would be less traumatic for the patient than the
saline method employed in Edmonton.10
The key fact noticed by the Court in ruling
against the physician was that he "made no attempt
to secure an abortion for the respondent in a
hospital in Edmonton" (by, for example, referring
her to a colleague) and thus failed "to display the
degree of care and concern dictated by the
situation."11
The trial judge had noted the same thing, and was
sceptical of the physician's evidence:
I cannot find that the
[physician] made any effort to get medical and
hospital care in Edmonton for the abortion and in
this respect his attitude appears to have been
casual. He failed to do everything he could for the
welfare of his patient, and I cannot accept as true
his statement to Mrs. Zimmer that she would have to
be declared mentally unsound before she could be
admitted to hospital in Edmonton for an abortion . .
. At least. . . he should have consulted another
gynaecologist in Edmonton before suggesting that she
go to Seattle.12
In other words, having told the patient that she
should get an abortion as soon as possible, he was
expected to at least attempt to secure an abortion
for the patient in Edmonton at the earliest
opportunity. Rather than making such an attempt, he
based his advice to go to Seattle on an untested
assumption about the availability of the procedure.
The patient took his advice and went to Seattle, but
she was found to be too far along for suction. A
saline abortion was performed, and "Mrs. Zimmer was
left to abort in a hotel room, unattended my medical
personnel." Thus,
[T]he respondent underwent a
more painful and emotionally distressing experience
than was necessary in the circumstances. Her
suffering would have been substantially reduced if
the appellant had discharged his duty by arranging
hospital care.13
Concluding the review of Zimmer, one can
argue that a physician who urgently recommends a
procedure to a patient has a duty to do all that he
reasonably can to help the patient obtain it, but Zimmer does not speak to a case in which a
physician, for reasons of conscience, refuses to
recommend a procedure at all.
Professors Cook and Dickens' second legal claim,
that the fiduciary duties of physicians requires
them to subordinate their conscientious convictions
to those of their patients, rests upon a more recent
Supreme Court of Canada case, McInerney v.
MacDonald. But McInerney14
had absolutely nothing to do with conflicts of
conscience. It concerned the duty of a physician to
release a patient's medical records to her upon
request. While the court noted that the fiduciary
relationship between physician and patient obliged
the physician to disclose the records, the nature of
fiduciary relationships was not discussed at length.
Moreover, the Supreme Court ruled that fiduciary
relationships and obligations are "shaped by the
demands of the situation"; they are not governed by
a "fixed set of rules and principles". Mr. Justice
La Forest, writing for the court, stated, "A
physician-patient relationship may properly be
described as'fiduciary' for some purposes, but not
for others."15
In other words, that the physician patient
relationship is fiduciary for the purpose of
disclosing patient records does not imply that it is
fiduciary for the purpose of suppressing the
conscientious convictions of the physician.
Finally, the court in
McInerney accepted the
characterization of the physician-patient
relationship as "the same . . . as that which exists
in equity between a parent and his child, a man and
his wife, an attorney and his client, a confessor
and his penitent, and a guardian and his
ward."
16Pursuing
the analogy, no one has ever suggested that the
fiduciary obligations of parents, husbands,
attorneys, confessors, and guardians require them to
sacrifice their own integrity to the "desires" of
others.
McInerneydoes not even remotely imply
that physicians have such a duty.
'The patient
prevails'
The authors also insist that "in the event of
differences between a physician and a patient
regarding the patient's care, the patient's
religious convictions prevail." Here they refer to
Malette vs. Shulman, the case of a physician
who was found liable for assault and battery because
he deliberately ignored the prior written
instructions of a Jehovah's Witness patient and gave
her an emergency blood transfusion to save her
life.17
The court ruled that medical treatment may not be
forced upon a patient if it is contrary to his
religious convictions, but it did not rule that a
physician may be forced to provide or refer for
treatment that is contrary to his. The case
demonstrates that respect for patient autonomy may
prevent a physician from doing what he believes to
be good, but it does not create a duty to do or
facilitate what the physician believes to be evil.
It is remarkable that Professors Cook and Dickens
continue to cite these three cases, since they do
not support their claims, and McInerney
arguably contradicts them.
What of their reference to 'transcendent ethical
duties'?
Dr. John R. Williams is now Director of the
Ethics Unit of the World Medical Association. He was
Director of Ethics for the Canadian Medical
Association in 2000, when he advised the Protection
of Conscience Project that the CMA's policy of
mandatory referral for abortion was dropped because
there was no ethical consensus to support
it.18
Despite this, the authors allege that physicians are
ethically obliged to provide "prior notice of
procedures that they will not perform" when
accepting patients. Absent such "prior notice," they
claim that "the fiduciary duty to refer applies."
This novel interpretation of the CMA's Code of
Ethics is apparently based upon the following
passages:
Inform your patient when your
personal morality would influence the recommendation
or practice of any medical procedure that the
patient needs or wants.19
Having accepted professional responsibility for a
patient, continue to provide services until they are
no longer required or wanted; until another suitable
physician has assumed responsibility for the
patient; or until the patient has been given
adequate notice that you intend to terminate the
relationship.20
But the CMA Code of Ethics does not
require that notice be given at a particular time,
nor, necessarily, when a patient is first accepted.
It is impossible for a physician to anticipate every
demand that a patient might make of him, and both
physicians and patients may, over the course of a
relationship, change their respective views on a
number of subjects. Moreover, technological
developments may introduce new issues into an
established relationship.
The authors' rigid expectation also ignores the
interpretive guide provided in the preface to the
CMA's Code:
[The Code's] statements
are general in nature, to be interpreted and applied
in particular situations. Specific ethical issues
such as abortion, transplantation and euthanasia are
not mentioned; they are treated in appropriate
detail in CMA policy statements.21
Finally, the CMA's more detailed treatment of
abortion includes the following statements:
• A physician should not be
compelled to participate in the termination of a
pregnancy.
• A physician whose moral or
religious beliefs prevent him or her from
recommending or performing an abortion should inform
the patient of this so that she may consult another
physician (emphasis added)22
One looks in vain here for any evidence of the
authors' alleged "fiduciary duty to refer."
'Well-being' and referral
The authors also argue from the physician's
obligation "to put first the well-being of the
patient," the first principle in the CMA Code of
Ethics.
Patients' well-being is
governed by their own perceptions and convictions,
not those of their physicians. Physicians cannot
invoke their sense of their own well-being to deny
or compromise their patients' lawful rights to
care.22
From this they conclude - yet again - that
objecting physicians "must refer their patients to
those who do not object to serve the patients'
wishes." But this presumes that the Code is
self-contradictory. It ignores the fact that the
principle "to put first the well-being of the
patient" co-exists with other sections of the Code and related policies that clearly do not
expect referral by conscientious objectors.
Even if the Code were ambiguous on the
subject of referral, such ambiguity would be
insufficient to conclude that it requires referral
in the service of the "well-being" of the patient -
especially "well-being" unilaterally and
subjectively defined by the patient. For it is one
thing to say that patients are the best judges of
what constitutes or contributes to their own
well-being, and quite another to say that they may
force physicians to serve the ends that they have
chosen, regardless of the physicians' conscientious
convictions: to force physicians to live their lives
and make moral choices in obedience to the wishes,
desires and demands of someone else. That is
servitude, not service. Nonetheless, the authors
cite Nancy B v Hotel Dieu deQuebec24
as legal authority for this line of ethical
reasoning.
Concerning the relevance of Nancy B to the
issue of conscientious objection, others do not
share the authors' opinion. Consider the following
comment by constitutional lawyer Iain Benson:
The Nancy B. decision
is not relevant to the question of conscience in
relation to pharmaceutical or medical practice
because the autonomous views of one person are not
what is at issue in "emergency contraception"
situations where a pharmacist or physician do not
wish to be involved in their prescription.
. . . this conflict cannot be
settled by reference to one person's autonomy
because two people's views or wishes (central to
autonomy) are involved. That one of the people is
the potential provider of the service sought is but
one factor to take into account. To put the matter
very clearly, let us look at what was and was not at
issue in the Nancy B. decision.
Nancy B. had Guillain-Barré syndrome and was
dependent upon a respirator. She wanted her
respirator shut off. None of the physicians objected
to what she wanted but sought the court's decision
on whether such a course was legal. This is not what
is relevant to the question of conscience or
religious objection to "emergency contraception."
Had a physician in the Nancy B. case refused
to be involved, say, in turning off the respirator,
then the issue would have been raised in a relevant
form. But such a factual "issue" was not present in
Nancy B. and that case fails to provide any
light on the question of the duties that exist with
respect to a pharmacist who does not wish to
prescribe a particular drug or physician who does
not wish to perform a particular procedure or nurse
who does not wish to assist with a particular course
of treatment.
Turning to the issue of accommodating
conscientious objectors, Benson reminds the reader
that the practice of medicine "is always a two-way
street."
Yes, the patient or "client"
has his or her autonomy; but so, too, does the
practitioner. There is no good reason (except
perhaps one grounded in an anti-religious bias) to
advocate that a patient's autonomy should trump the
autonomy of the professional health-care worker just
because the two views conflict. What is needed . . .
is an examination of how to accommodate conscience
and religious views within the contemporary
technocratic and often implicitly anti-religious
paradigm of certain aspects of modern medicine.
. . . The real issue, where
there is a conflict of views between people
regarding involvement with a procedure or drug, is
not settled by reference to one person's "autonomy"
but by reference to another principle, that of
"justice" (defined as "rendering a person their
due…"). For it is there, in the order of justice,
that competing claims must be reconciled in a manner
that accords with the rule of law (including
professional ethics and respect for professional
disagreement), the provision of health-care and the
developed understanding of a civil society.25
The final word on Nancy B. is best left,
for the present, to Professor Dickens. He did not
discover a duty to refer when expatiating upon the
ruling in 1993. In fact, he included a comment in
his concluding remarks that is difficult to
reconcile with his most recent position:
[The ruling] is respectful of
Nancy B.'s choice of death, approves a process of
death that cares for her comfort and dignity, does
not speak of a right to die, and shows care too for
the caregiver's comfort and conscience, empowering
without ordering the physician to act.26
(emphasis added)
'Your wish is my command'
The authors attribute to Chief Justice Dickson of
the Supreme Court of Canada the notion that a
woman's desire - not need - is of "key importance"
in establishing abortion as a fundamental human
right. They suggest that this principle can be found
in his remark in R v. Morgentaler that
forcing a woman to carry a child to term "unless she
meets certain criteria unrelated to her own
priorities and aspirations" interferes profoundly
with her body and is "a violation of the security of
the person."27
For present purposes it is unnecessary to explore
the ramifications of medical practice based on
satisfying patient desires rather than meeting
patient needs. It is enough to notice that, in the
passage quoted, Chief Justice Dickson was addressing
himself only to the meaning to be given to the
phrase "the security of the person" in Section 7 of
the Charter of Rights and Freedoms. The
passage does not provide the key to resolving a
conflict between a patient demanding an abortion and
a physician unwilling to facilitate the procedure
for reasons of conscience.
In fact, in R v. Morgentaler neither Chief
Justice Dickson nor Mr. Justice Lamer, who joined in
his reasons for judgement, considered principles
associated with freedom of conscience, nor did
Justices McIntyre and La Forest. But other judges
did, and it is regrettable that Professors Cook and
Dickens overlooked their opinions in their attempt
to explain how R v. Morgentaler should be
applied in cases of conscientious objection to
medical procedures.
Justices Beetz and Estey had the least to say on
the subject. They observed that the law could not
compel hospitals to form therapeutic abortion
committees "any more than it could force a physician
to perform an abortion" because the decision to form
committees, like a decision to perform an abortion,
"is, in part, one of conscience, and, in some cases,
one which affects religiousbeliefs."28
Madame Justice Bertha Wilson reflected more
broadly on the nature and importance of freedom of
conscience, arguing that "an emphasis on individual
conscience and individual judgment . . . lies at the
heart of our democratic political tradition."29
Wilson held that it was indisputable that the
decision to have an abortion "is essentially a moral
decision, a matter of conscience."
The question is: whose
conscience? Is the conscience of the woman to be
paramount or the conscience of the state? I believe.
. . that in a free and democratic society it must be
the conscience of the individual. Indeed, s. 2(a)
makes it clear that this freedom belongs to
"everyone", i.e., to each of us
individually.30
Here she was not discussing whether or not the
conscience of a woman should prevail over that of an
objecting physician, but how the conscientious
judgement of an individual should stand against that
of the state. Her answer was that, in a free and
democratic society, "the state will respect choices
made by individuals and, to the greatest extent
possible, will avoid subordinating these choices to
any one conception of the good life."31
Moving closer to the heart of the matter, Wilson
insisted that an individual must never be treated as
a means to an end - especially an end chosen by
someone else, or by the state. One of her reasons
for striking down legal restrictions on abortion was
that, through the law, the state was 'taking sides'
on what is essentially a moral question that should
be left to private judgement. She rejected the idea
that the state should endorse and enforce "one
conscientiously-held view at the expense of
another," for that is "to deny freedom of conscience
to some, to treat them as means to an end, to
deprive them . . .of their 'essential humanity'."32
This is hardly a stepping stone to the kind of
simplistic 'your wish is my command' solution
advocated by Professors Cook and Dickens. Indeed, it
is ironic that Madame Justice Wilson's reasoning in
R v. Morgentaler so eloquently undermines
their position. Following Madame Justice Wilson, for
a regulatory authority or professional association
to endorse and enforce the conscientiously-held view
of the patient at the expense of physicians is to
deny freedom of conscience to physicians, to treat
them as means to an end, to deprive them of their
"essential humanity."
Belgium and the United Kingdom: referral for
euthanasia
Belgium legalized euthanasia (not assisted
suicide) in September, 2002. The Euthanasia Act
(S. 14) provides that physicians cannot be compelled
to perform euthanasia and other persons cannot be
forced to assist in it. It also requires that a
physician who declines to perform euthanasia must
transfer the patient's medical file to a physician
or person designated by the patient if requested to
do so, but there is no requirement to refer or
otherwise actively facilitate the procedure.33
The Project has frequently argued that if
physicians can be compelled to refer for abortion or
contraception or other morally controversial
services, one ought to expect that they will be
forced to refer for legalized euthanasia or assisted
suicide. This is precisely what has happened in
Belgium. A joint Policy Statement on End of Life
Decisions and Euthanasia signed by the Belgian
Association of General Practitioners, the Academy at
the Catholic University of Leuven and the Academy
for Knowledge at the University of Ghent affirmed
that physicians who object to euthanasia are obliged
to help patients find a colleague who will provide
the service.34
A different approach is evident in the United
Kingdom. A euthanasia bill proposed by Lord Joffe
included a provision that required an objecting
physician to refer a patient for euthanasia. The
British House of Lords' Select Committee studying
the bill took oral and written evidence from
numerous sources that protested the compulsory
referral provision, testifying, one might say, to
widespread understanding and acceptance of the
principle of vicarious moral
responsibility.
35
Moreover, the parliamentary Joint Committee on
Human Rights advised the Select Commitee that a
mandatory requirement to refer patients for
euthanasia was probably a violation of the European
Convention on Human
Rights.
36
Ultimately, Lord Joffe agreed to delete the
provision for this
reason.
37
Summary
This paper is confined to a review of the cases
cited by Professors Cook and Dickens and their
reasoning from them on the subject of referral for
morally controversial procedures. Apart from brief
reference to recent Belgian and British
developments, no attempt has been made to marshal
cases and arguments that offer support for the
position of physicians who refuse to refer for
services to which they object. Nonetheless, even
this limited review of the subject leads to a number
of conclusions.
• Zimmer v. Ringrose is
not authority for the proposition that failure to
refer a patient for reasons of conscience almost
amounts to abandonment.
• McInerney v. MacDonald
is not authority for the view that physicians have a
fiduciary duty to refer patients for treatment to
which they object for reasons of conscience.
• Malette vs. Shulman
does not create a duty to do or facilitate what the
physician believes to be wrong.
• The ruling in Nancy B v
Hotel Dieu de Quebec is respectful of "the
caregiver's comfort and conscience, empowering
without ordering the physician to act;"it does not
impose a duty to refer for morally controversial
procedures.
• R v. Morgentaler did
not establish the 'desire of the patient' as a
fundamental principle governing the practice of
medicine. The only references to freedom of
conscience in Morgentaler support the view that
physicians should not be forced to refer for
services that they find morally objectionable.
• The authors' claim that
"prior notice" is valid only if given when a patient
is accepted is excessively rigid and inconsistent
with the Canadian Medical Association's Code of
Ethics.
• The first principle in the
CMA Code of Ethics, "to put first the
well-being of the patient,"co-exists with other
sections of the Code and related policies that
clearly do not expect referral by conscientious
objectors. It cannot be taken out of context to
fabricate a duty to refer for morally controversial
procedures.
• To accept the authors'
claims for mandatory referral in the case of
abortion or the morning-after pill would set a
precedent for mandatory referral for other
controversial procedures, including euthanasia and
assisted suicide
• The rejection by the British
parliamentary committees of the compulsory referral
provision in Lord Joffe's euthanasia bill supports
the view that compulsory referral is an
unjustifiable violation of freedom of conscience.