VI. THE NEW 'RIGHTS' LANGUAGE

VI.1   Cook and Dickens, with Downie, Rodgers and others, are using 'rights' language, but not the 'rights' language of the 1960's, when abortion law reform was proposed. When the National Association for the Repeal of Abortion Laws opened its doors in the United States in 1969, the claim that abortion was a 'right' was directed only at the repeal of laws against the procedure, so that women would be free to seek abortions and, as the Globe and Mail put it, so that physicians would be able "to perform their duties according to their conscience and their calling."22  At that time, Canadians were repeatedly assured that "nobody would be forcing abortion procedures on anyone else."23

VI.2   Current rights claims must be distinguished from this early period. Contrary to early activist promises, current rights claims are meant to force health care workers and institutions to provide or at least facilitate abortion, contraception, and artificial reproduction, all of which remain morally controversial. A major 'mover and shaker' in this project is the Center for Reproductive Rights,24 an American advocacy group described in internal documents as an organization "comprised largely of economically advantaged white women."25  The Center's agenda includes, among other things, the legal enforcement of what it describes as inalienable sexual rights.26VI.3   The Center's ultimate goal is to establish what it calls "hard norms" - treaty-based international laws - 27  that recognize access to abortion as a fundamental human right.28 It plans to develop a "culture of enforcement" that will compel governments to respect this 'right'29 and enforce it against third parties - physicians and other health care workers.30 Even as it works toward this end, it is cultivating "soft norms" in the form of statements by international, regional, and intergovernmental bodies.31 Professor Dickens attempt to turn conscientious objection into a crime against humanity illustrates how this can be done (See Appendix "A").

VI.4   Should the Center be successful it acknowledges that it will have effected "profound social change."32  It will also have destroyed almost all hope of respect for freedom of conscience in health care. For if refusal to facilitate abortion or other morally controversial procedures were to become, in law, an offence like racial discrimination, conscientious objection would be prohibited, just as racial discrimination is now prohibited.33

VI.5   Cook, Dickens, Downie, Rodgers and the Ontario Human Rights Commission appear to be employing the strategy advocated by the Center. Special attention should thus be paid to key features of the Center's strategy, notably its focus on securing a following among social, political, academic and professional elites.34 The medical profession is one of the "key sectors" that figures prominently in this strategy;35  so, too, does the legal community.36  The approach is summed up in the Center's question ,"How can we influence the people who influence the legal landscape around reproductive rights?"37

The courtship of the elites

VI.6   The courtship of the elites occurs in academic, professional and bureaucratic communities, largely out of the public eye, thus avoiding what one memo calls "nasty opposition."38  This is especially important if professionals and academics may be more sympathetic to the CRR agenda than ordinary people.39  An internal memo values the "stealth quality to the work," through which the Center achieves "incremental recognition of values without a huge amount of scrutiny from the opposition."40

VI.7   Despite an admission that a 'right' to abortion cannot be found in existing international instruments, the Center and its allies argue that it is implicit in other internationally recognized rights, such as the right to life, liberty and security, and rights to privacy and freedom from discrimination.41  They hope to secure "hard norms" by having binding treaties or protocols interpreted in this way,42 in the expectation that other adjudicators will find such rulings persuasive.43

VI.8   The Center's cultivation of "soft norms" is a very similar process, but takes place not only in adjudicative bodies but in international conferences that produce non-binding but persuasive opinions.44  As "soft norms" quietly accumulate it becomes easier for the Center to claim that they represent an emerging consensus that should be codified in binding "hard norms."45  The development of "soft norms" is of great moment for freedom of conscience in health care because they will likely have the most immediate impact on conscientious objectors.

VI.9   Professional associations, educational and regulatory authorities and influential individuals can support the CRR's work by developing "soft norms" closer to home - like the CPSA's Draft Standards of Practice. Colleagues or academics will argue that the provision of abortion or, at least, referral for abortion, is an expected or even legally required standard of care. Ethicists and professional journals not infrequently express opinions hostile to freedom of conscience, as do individual health care practitioners.46 One even encounters unsubstantiated claims and dubious or false statements about the actions or ethical obligations of conscientious objectors.47

VI.10   If such claims are repeated often enough by influential persons - like College councillors, law professors, or former deans of law faculties - even if the claims are false or exaggerated - they gradually assume the character of a new norm. Ideally, this new norm will be implemented by the disciplinary apparatus of self-governing professions as a standard of care: first, by pressure, in the form of pointed suggestions, informal cautions and official guidance, later, in documents like the present Draft Standards of Practice.

VI.11   If an objecting physician is charged for misconduct, it is quite likely that members of the professional tribunal hearing the case will have already been convinced of the new rights-based standard of care, or will have been prepared to accept the claims of experts called to testify to it. Should they ratify it by ruling against the objector, they will create a new "soft norm" that the CRR and its allies can use elsewhere in their continuing quest for international "hard norms." It might added that the establishment or confirmation of even a "soft" norm would be oppressive in the jurisdiction bound by the decision.

VI.12   Parallel litigation can also be initiated in quasi-judicial forums, like human rights tribunals, which, in Canada, afford complainants the advantage of cost-free, aggressive inquisitions with extraordinary powers.

VI.13   Those concerned about freedom of conscience and religion should take note of the polemics and tendentious reasoning involved in this project (Appendix "A"). In particular, even if claims of 'rights' to abortion or contraception can be grounded in rights purportedly implicit in international instruments, it does not follow that they override the repeated explicit international recognition and support for freedom of conscience and religion.

VII. BELIEF: RELIGIOIUS AND OTHERWISE

Claim

VII.1   It has become an article of faith with many, especially many holding public positions, that faith has no place in public and professional life. A convenient example is found in the dogmatic assertion by the Ontario Human Rights Commission (OHRC) of its belief that physicians "must essentially 'check their personal views at the door' in providing medical care."48  The same kind of claim has been made by the American College of Obstetrics and Gynecology through the opinion expressed by its Ethics Committee, which argues that "professional responsibilities to patients . . . must precede a provider's personal interests" and insists that physicians are obliged to refer for morally controversial procedures and may have to personally provide them.49

VII.2   The more blatant OHRC claim calls to mind comments made by Dr. James Robert Brown in 2002. A professor of science and religion of the University of Toronto, Dr. Brown offered a simple solution for health care workers who don't want to be involved with things like abortion or contraception. These "scum" - that was his word - should "resign from medicine and find another job." His reasoning was very simple.

Religious beliefs are highly emotional - as is any belief that is affecting your behaviour in society. You have no right letting your private beliefs affect your public behaviour.50

Response

VII.3   When Dr. Brown declared that no one should be allowed to let private belief affect public behaviour, he was doing precisely that. He was acting publicly upon his private belief that conscientious objectors in health care should not be allowed to act publicly upon theirs. Dr. Brown did not explain why this should be so, but others have made the attempt.

VII.4   Religious beliefs, so the argument goes, are unreliable and divisive because they are unscientific, essentially 'private' and 'personal' in nature. It is said that they must be banished from public affairs in a secular society in the interests of social harmony, progress and, now, human 'rights.' Proponents of this view point to religious wars and persecutions throughout history to justify their claims. However, considered within a broader social and historical context that includes the oppressive and frequently bloody pursuit of secular objectives in the French Revolution, Stalinist Russia and Nazi Germany, the argument is unpersuasive. And it becomes even less persuasive in the case of individuals.

VII.5   For example: after ten years of bloody wars, the ancient Indian emperor Asoka became a Buddhist, and decided that he should rule his people like a father, with "morality and social compassion." Among other things, he provided them with free hospitals and veterinary clinics, and built new roads and rest houses for travellers.51  In other words, Asoka let his private beliefs affect his public behaviour. Like Mother Teresa of Calcutta - who also let her private beliefs influence her public behaviour - Asoka is still revered in India, nicknamed "the saint."

VII.6   Moving from ancient times into the last century, one recalls that fewer than half the Canadians who landed at Dieppe in 1942 made it back. The Royal Hamilton Light Infantry landed with 582 men; 365 were killed or taken prisoner.52  John Foote was honorary chaplain to the regiment. For eight hours, repeatedly exposing himself to "an inferno of fire," he assisted the Regimental Medical Officer, going out to the wounded, carrying them to shelter, and, later, carrying them on his back to evacuation landing craft. Ultimately, he chose to stay on the beach and be taken prisoner with those left behind.53

VII.7   Asoka, Mother Teresa and John Foote were religious believers, but it is false to assert that only religious believers are motivated by belief. In 1915, at Ypres, Canadian physician Francis Scrimger ordered the evacuation of his dressing station, but remained behind to stabilize a wounded officer. As shells dropped around him, demolished the building and set it on fire, he shielded his patient with his own body as he worked, and then carried the larger man to safety through an artillery barrage.54  Foote, a Presbyterian minister, and Scrimger, "an atheist by outward appearances,"55  both acted in accordance with their personal beliefs; both were awarded the Victoria Cross.

VII.8   If one accepts the logic of Professor Brown, Scrimger deserved the award but Foote did not, because Foote had no business letting his religious beliefs influence his public behaviour. On the other hand, the stated policy of the Ontario Human Rights Commission would deny both recognition, on the broader grounds that both failed to 'check their personal views at the door' when the bullets started to fly.

VII.9   The stories of Foote and Scrimger may remind physician members of the College Council of countless colleagues in the profession who, through the centuries, have died of contagious and incurable diseases contracted because they refused to abandon their patients. Not a few of this number were motivated by personal beliefs, religious or otherwise, but the profession has never taken towards them the attitude now demanded of it by human rights commissions.

VII.10   All public behaviour - how one treats other people, how one treats animals, how one treats the environment - is determined by what one believes. All beliefs influence public behaviour. Some of these beliefs are religious, some not, but all are beliefs. That human dignity exists -or that it does not - or that human life is worthy of unconditional reverence - or merely conditional respect - and notions of beneficence, justice and equality are not the product of scientific enquiry, but rest upon faith: upon beliefs about human nature, the meaning and purpose of life, the existence of good and evil.

VII.11   Disputes about morality - about the morality of contraception, assisted suicide, stem cell research or artificial reproduction - are always, at the core, disputes between people of different beliefs, whether or not those beliefs are religious. "Everyone 'believes'," writes social critic Iain Benson. "The question is, what do we believe in and for what reasons?"Once we realize that everyone necessarily operates out of some kind of faith assumptions we stop excluding analysis of faith from public life. We cannot simply banish "religious" faiths from our common conversations about how we ought to order our lives together while leaving unexamined all those "implicit faiths" in such areas as public education, medicine, law or politics.56

VII.12   The implicit faith to which Benson refers is exemplified in a statement by the Ethics Committee of the American College of Obstetrics and Gynecology (ACOG). "Although respect for conscience is a value," states the Committee, "it is only a prima facie value, which means it can and should be overridden in the interest of other moral obligations that outweigh it in a given circumstance."57  The Committee's assertions about the relative importance of freedom of conscience and about what counts as overriding moral obligations are based on faith-assumptions shared by Committee members. It is implied that all reasonable people will accept those faith-assumptions, but, in fact, many reasonable people do not.

VII.13   The failure to acknowledge the faith-assumptions implicit in one's own position frequently leads to intolerance for opposing views, and it always makes sincere, respectful and progressive public discourse difficult. This is particularly true of discussion of freedom of conscience in health care.

VIII. ESTABLISHMENT CONSENSUS AND THE ETHICS OF THE PROFESSION

Claim

VIII.1   It might be argued that Professor Brown's declaration expressed, not just a private conviction, but a broad public consensus, a consensus of serious establishment thinkers (like members of the OHRC or ACOG), or, perhaps, a consensus reflecting "the ethics of the profession."58

Response

VIII.2   However, this kind of 'consensus' is typically achieved by taking into account only opinions consistent with ethical, moral or religious presuppositions that are congenial to a dominant elite. The resulting 'consensus' is, in reality, simply the majority opinion of like-minded individuals, not a genuine ethical synthesis reflecting common ground with those who think differently.59  Unfortunately, this usually becomes clear only when documents like Physicians and the Ontario Human Rights Code become public knowledge, and those excluded from the table make themselves heard. 

VIII.3   More to the point, to identify beliefs as 'private' or 'personal' does not help to resolve a question about the exercise of freedom of conscience. The beliefs of many conscientious objectors, while certainly personal in one sense, are actually shared with tens of thousands, or even hundreds of thousands or hundreds of millions of people, living and dead, who form part of great religious, philosophical and moral traditions. If their beliefs are 'private,' those of Professor Brown, the College Council and the OHRC are not less so. Disputes about what counts as 'private' or 'public' thus end in a stalemate.

VIII.4   The question does not turn on privacy, but truth. If the College Council possess a moral vision that is superior to that of objecting physicians, it is clear that Council's superior moral views ought to prevail. But, in that case, Council members should be able and willing to explain first, why they are better judges of morality than objecting physicians, and, second, why their moral judgement should be forced upon unwilling colleagues. Avoiding the issue by hiding behind noble sounding phrases like "the ethics of the profession" will not do.

IX. SOCIAL CONTRACT

Claim

IX.1   One frequently encounters references to a "social contract" between the medical profession and society, especially in discussions about the meaning of "professionalism."60  The Royal College of Physicians has suggested that, in relation to medical practice, it is more accurate to speak of a "moral contract" between society and the profession.61 Others have argued that the concept of a social "covenant" provides a better framework for ethical reflection.62

Response

IX.2   It is important to recognize that, whether the term of choice be contract or covenant, or the contract be social or moral, all such notions are convenient fictions. The Oxford Companion to Philosophy makes the point:

Contract, social: The imaginary device through which equally imaginary individuals, living in solitude (or, perhaps, nuclear families) , without government, without a stable division of labour or dependable exchange relations, without parties, leagues, congregations, assemblies or associations of any sort, come together to form a society, accepting obligations of some minimal kind to one another, and immediately or very soon thereafter binding themselves to a political sovereign who can enforce those obligations.63

IX.3   Theories of 'contract' and 'convenant' are tools that can be usefully employed to explore different aspects of human relationships, but they become dangerous when they are thought to offer adequate explanations of those relationships, or when one moves from speculative discussion and analysis to the enforcement of purported obligations. It is also necessary to recall that claims about the precise content of a contract become especially intense when the parties involved disagree.

X. SOCIAL CONTRACT AND SOCIALIZED MEDICINE

Claim

X.1   Socialized medicine in Canada has been and continues to be a great benefit to many people, but little attention has been paid to the dynamic of expectation that arises when the state assumes primary responsibility for the delivery of health care. Health care providers come to be seen as state employees, and citizens begin to believe that they are entitled to demand from health care providers the services they have paid for through taxes. The President of the College of Physicians and Surgeons of Ontario offered the following comment during a recent controversy about freedom of conscience in medicine:

In our society, we all pay taxes for this medical system to receive services . . . And if a citizen or taxpayer goes to access those services and they are blocked from receiving legitimate services by a physician, we don't feel that's acceptable.64

X.2   In this case it is argued that there is an actual rather than theoretical social contract for the provision of health care, and that the state and the medical profession are parties to it. Given the nature and complexity of health care, however, much of the content of the virtual contract must remain undefined, and conflicts will arise. The problem becomes especially acute when legal but morally controversial procedures are the focus of the conflict.X.3   Citizens are likely to expect the state to enforce what they consider to be the terms of the contract against reluctant employees and other health care providers through institutions like the College of Physicians and human rights commissions.

Response

X.4   However, even if one posits the existence of a contract, such an expectation ignores three key points.

X.5   First: the terms of the contract on this issue have never been defined or settled. It is a matter of fact that, in assisting in the birth of medicare, the medical profession did not agree that its members would, from that point, deliver every service demanded by the public, regardless of their conscientious convictions. The state, a party to the contract, can ask that it be re-negotiated, but cannot unilaterally demand that the profession "read in" non-existent provisions.

X.6   Second: when abortion was legalized in 1969, repeated assurances were given that health care workers would not be forced to participate in the procedure.65 In fact, the government of the day rejected a protection of conscience amendment to the bill on the grounds that it was not necessary.66 Subsequent coercion experienced by health care workers and present attempts to force objectors to become involved with the procedure suggest that the promises made when abortion was legalized were less than sincere. Continuing the analogy of contract for the purpose of the discussion, agreements obtained by fraud are not binding.

X.7   Third: even if physicians have become de facto employees of the state since the introduction of public health care, it does not follow that they cannot exercise freedom of conscience and religion. On the contrary: as employees of a "service industry," they are entitled to the same accommodation of freedom of conscience and religion available to employees of other service industries.

X.8   The standard is that they must be accommodated to the point of undue hardship.67 Given the enormous resources available to their employer - the state - it is difficult to imagine under what circumstances it might experience "undue hardship" in the delivery of health care. Not incidentally, physicians are also entitled to demand that the state ensure that their workplace environments are not poisoned against them by state institutions - like human rights commissions.

XI. FIDUCIARY DUTY

Claim

XI.1   Moving from imaginary devices to legal argument, some writers assert that the fiduciary duties of physicians requires them to subordinate their conscientious convictions to those of their patients. Professors R.J. Cook and B.M. Dickens have made this claim,68 citing the Supreme Court of Canada case, McInerney v. MacDonald.69

Response

XI.2   However, McInerney 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, and the nature of fiduciary relationships was not discussed at length. Moreover, the 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."70 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.

XI.3   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."71  Pursuing 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. McInerney does not even remotely imply that physicians have such a duty.

XII."NEGLIGENCE CLOSE TO ABANDONMENT"

Claim

XII.1   Professors Cook and Dickens claim that the Alberta case of Zimmer vs. Ringrose is authority for the proposition that failure to refer for abortion approximates patient abandonment:

[T]he "failure to provide adequate follow-up care" . . . 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 added)72

Dickens cites Zimmer to the same effect in Canadian Health Law and Policy (2nd Ed.).73

Response

XII.2   Though they refer to "historical background jurisprudence," Cook and Dickens 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.74

XII.3  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.75

XII.4   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.76 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.77

XII.5   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."78

XII.6   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.79 

XII.7   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 by 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.80

XII.8   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.

XIII. LEGALITY

Claim

XIII.1   It is also said that health care workers cannot refuse to provide any legal procedure, as if the legality of the procedure were sufficient to impose a duty to provide it upon either the profession as a whole or individual physicians.

Response

XIII.2   If this were a valid argument, it ought to apply to all other legal procedures. It can be shown that this is not the case.

XIII.3   Sex selective abortion: There is no law against sex-selective abortion in Canada, nor against determining the sex of an infant before birth. Nonetheless, the Deputy Registrar of the College of Physicians and Surgeons of British Columbia was horrified in August, 2005, when he learned that a pre-natal gender testing kit was being marketed on the internet. Dr. T. Peter Seland, described gender selection as "immoral." He explained that College policy was not to disclose the sex of a baby until after 24 weeks gestation in order to reduce the risk of gender selection, and that physicians violating the policy were liable to be disciplined by the College.81 This clearly indicates that the legality of a procedure is not reason enough to compel a health care worker to provide it.

XIII.4   Amputation: In 1999, Dr. Robert Smith of Scotland performed single leg amputations on two patients who desired the amputation of healthy limbs. The surgery was performed with the permission of the Medical Director and Chief Executive of the hospital, in a National Health Service operating theatre with NHS personnel, after consultation with the General Medical Council and professional bodies.82 The procedures were legal and even deemed ethical by regulatory authorities, but, to date, no one has argued that this is sufficient reason to oblige surgeons to amputate healthy limbs upon request, and to compel physicians to refer for such surgery.

XIII.5   Execution: Capital punishment is legal in a number of jurisdictions. 35 of the 38 American states that use lethal injection as a means of execution permit the participation of physicians, and 17 of them require it. "Thirteen jurors, citizens of the state, have made a decision," explained one physician who assists with executions. "And if I live in that state and that's the law, then I would see it as being an obligation to be available."83 The law is the law, after all. However, despite the legality of the procedure, and in defiance of the laws that actually require the attendance of physicians, the Code of Ethics of the American Medical Association forbids the participation of physicians in executions,84 and those who ignore the ban risk losing their licenses to practise.85 In the face of a pending decision of the American Supreme Court, a guest editorial commented on the obvious conflict between the expectations of the law and the attitude of physicians:

In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives . . .The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.86

XIV. BALANCE

Claim

XIV.1   Referral is often explained as "striking a balance" between the interests of the physician and those of the patient.

Response

XIV.2   In cases of conscientious objection their interests cannot be balanced because they are not commensurable; they concern fundamentally different goods. A patient wants a particular product or service, but the physician wishes to avoid complicity in wrongdoing and live and work according to his conscientious convictions. With sufficient imagination and political will one may find a way to accommodate the interests of both, but to compel the physician to do what he believes to be wrong does not achieve 'balance' but effects his subordination.

XV. LIMITS TO EXPRESSSION

Claim

XV.1   It is argued that there are limits to the exercise of freedom of conscience and religion, and that it is 'appropriate' to limit a physician's freedom by requiring referral.

XV.2   It has been suggested that this approach is justified by Personal Beliefs and Medical Practice, a policy document produced by Britain's General Medical Council.87 Paragraph 21 of that document asserts that an objecting physician must provide a patient with contact information for a colleague who will provide the controversial procedure. It also directs the reader to the relevant passage in an earlier publication, Good Medical Practice (2006),which advises physicians that if they have declined to provide a procedure and advised a patient of his right to see another doctor, they must "ensure that arrangements are made for another suitably qualified colleague to take over" if it is not practical for the patient to do so.88

Response

XV.3   The CMA approved Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care89  is to be preferred to GMC documents on this issue.

XV.4   The GMC documents do not appear to have taken into account evidence taken in 2004 and 2005 by the British House of Lords Select Committee on Assisted Dying for the Terminally Ill, and the conclusions of the Committee. The bill, in its original form, included a requirement that objecting physicians refer patients for euthanasia. Numerous submissions protested this provision because it made objecting physicians a moral party to the procedure,90 and the Joint Committee on Human Rights concluded that the demand was probably a violation of the European Convention on Human Rights.91 The bill's sponsor, Lord Joffe, promised to delete the provision in his next draft of the bill.92

XV.5   Returning to the notion that there are limits to the exercise of freedom of conscience and religion: that, as the Supreme Court put it, "the freedom to hold beliefs is broader than the freedom to act on them." 93 This is hardly a new proposition. Oliver Cromwell said as much 400 years ago.

As for the People [of Ireland], what thoughts they have in matters of Religion in their own breasts I cannot reach; but shall think it my duty, if they walk honestly and peaceably, Not to cause them in the least to suffer for the same. And shall endeavour to walk patiently and in love towards them to see if at any time it shall please God to give them another or a better mind. And all men under the power of England, within this Dominion, are hereby required and enjoined strictly and religiously to do the same. 94  

But to act upon religious belief was, for Cromwell, another matter.

. . . I shall not, where I have the power, and the Lord is pleased to bless me, suffer the exercise of the Mass . . . nor . . . suffer you that are Papists, where I can find you seducing the People, or by any overt act violating the Laws established; but if you come into my hands, I shall cause to be inflicted the punishments appointed by the Laws. 95 

XV.6   Cromwell, the Supreme Court of Canada and the Ontario Human Rights Commission all agree that the freedom to act on beliefs is less extensive than the freedom to hold them.  So, for that matter, do those who support freedom of conscience in health care. The principle is not in dispute. What is in dispute is where the line between belief and expression is to be drawn, and what is to be done with those who cross it. The Irish did not share Cromwell's views about where the line should be drawn, nor is it clear that there is anything approaching a consensus in Canada on this point. So it is instructive to remember Oliver Cromwell and the Irish when social and political elites begin to sound like the Lord Protector.

XV.7   The statement that mandatory referral can be justified as a kind of limit to freedom amounts to this: that a physician is free to refuse to actually perform a procedure that he believes is wrong, but can be compelled to do what some other person believes is a lesser wrong, or what some other person thinks is not "really" a wrong at all. In short, the physician is to be compelled to practise according to the conscientious convictions of someone else, to serve ends chosen by someone else even if he finds them abhorrent. This is a form of servitude, not service.

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