Submission to the Alberta College of Pharmacists
Re: Draft Code of Ethics

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XVIII. The problem of complicity

XVIII.1 Most people seem willing to grant that a health care worker who has serious moral objections to a procedure should not be compelled to perform it or assist directly with it. However, many people find it more difficult to understand why some health care workers object to even indirect forms of involvement: why some would refuse to refer patients for procedures they believed to be wrong.

XVIII.2 For example, the Canadian Pharmacists' Association (CPhA) agrees that objecting pharmacists should not have to "take part" or " participate" in euthanasia or assisted suicide, but claims that they (and physicians and nurses as well) are ethically obliged to "refer" for the services where they are legal.⁸⁹ In this respect the CPhA seems to follow the reasoning of the ACOG Committee on Ethics. The Committee claims that refusing to refer is illogical. "[T]he logic of conscience," it states, "as a form of self-reflection on and judgement about whether one's own acts are obligatory or prohibited, means that it would be odd or absurd to say, "I would have a guilty conscience if she did X."⁹⁰

XVIII.3 It thus appears that the Canadian Pharmacy Association and ACOG Committee are working from what might be called the 'Absolutionist Premise:' that someone who merely arranges for an act is absolved of moral responsibility because only someone who actually does an act is morally responsible for it.

XVIII.4 Alternatively, the CPhA and ACOG may admit that some moral responsibility is incurred by referral or by otherwise facilitating a procedure, but that the degree of responsibility is sufficiently diminished in such cases that it is of no real significance. Call this the 'Dismissive Premise.'

XVIII.5 In passing, it should be noted that, on either account, the position of the CPhA raises the issues discussed in Parts IX and X. Whether it asserts that referral or facilitation do not incur moral responsibility, or that the degree of moral responsibility incurred is so minimal as to be inconsequential, it is making a moral judgement and demanding that others adhere to it.

Complicity in torture

XVIII.6 The Absolutionist Premise is illustrated by the opinion of Newsweek columnist Jonathan Alter. In the weeks following the terrorist attacks on the United States in September, 2001, Alter argued that it was time to think about torturing terrorist suspects who might have information about plans for such horrendous crimes. He acknowledged that physical torture was "contrary to American values," but argued that torture is appropriate in some circumstances, and proposed a novel 'compromise:' that the United States turn terrorist suspects who won't talk over to "less squeamish allies,"⁹¹ a practice known as "extraordinary rendition." The allies would then do what Americans would not, without compromising American values.

XVIII.7 Less than a year later, Canadian citizen Maher Arar, returning home from Zurich through New York, was detained, interrogated and "rendered" to Syria by U.S. authorities.⁹² In Syria he was imprisoned for almost a year, "interrogated, tortured and held in degrading and inhumane conditions."⁹³

XVIII.8 A subsequent "comprehensive and thorough" investigation "did not turn up any evidence that he had committed any criminal offence" and disclosed "no evidence" that he was a threat to Canadian security."⁹⁴ A commission of inquiry was appointed to investigate "the actions of Canadian officials" in the case.⁹⁵

XVIII.9 What was of concern to Mr. Arar, the public and the government was whether or not Canadian officials had caused or contributed to what happened to Mr. Arar, even though his deportation to Syria was effected by the United States, and Syrian officials imprisoned and tortured him. The key issue was whether or not Canada was complicit in torture.

XVIII.10 Concern about Canadian complicity surfaces repeatedly in the report of the commission of inquiry: in briefing notes to the Commissioner of the RCMP,⁹⁶ in the testimony of the Canadian Ambassador to Syria,⁹⁷ in references to the possibility of RCMP complicity in his deportation,⁹⁸ about the perception of complicity if CSIS agents met Mr. Arar in Syria,⁹⁹ in the suggestion that evidence of complicity could show "a pattern of misconduct,"¹⁰⁰ and in the conclusions and recommendations of the report itself.¹⁰¹

XVIII.11 The issue of complicity arose again in 2007 when a report in Toronto's Globe and Mail alleged that prisoners taken in Afghanistan by Canadian troops and turned over to Afghan authorities were being mistreated and tortured.¹⁰² "Canada is hardly in a position to claim it did not know what was going on," said the Globe. "At best, it tried not to know; at worst, it knew and said nothing."¹⁰³ On this view, one can be complicit in wrongdoing not only by acting, but by failing to act, and even by silence. The Globe editorial brings to mind the words of Martin Luther King and Mahatma Gandhi.¹⁰⁴

XVIII.12 Thus far, government officials. But the problem of complicity does not relate only to government officials. The Lancet, among others, has asked, "How complicit are doctors in the abuse of detainees?"¹⁰⁵ and other journal articles have explored the answer with some anxiety.¹⁰⁶

XVIII.13 The Arar Inquiry, the concerns raised by the Globe and Mail story about Afghan detainees and the alarm raised about physician complicity in torture make sense only on the presumption that one can be morally responsible for acts actually committed by another person. The Absolutionist Premise does not provide a plausible starting point for moral reasoning.

Complicity in capital punishment, euthanasia and assisted suicide

XVIII.14 The Dismissive Premise is more promising. Granted that one can be morally responsible for acts actually committed by another, there may be differences of opinion about what kind of action or omission incurs such responsibility. These differences need not be thoroughly canvassed in this paper. It is sufficient to ask if the kind of action involved in referral can have that effect. That is: if a pharmacist refers or otherwise helps a patient to obtain what he believes to be an immoral procedure, is he a culpable participant in the provision it?

XVIII.15 The issue of culpable participation in a morally controversial procedure has been considered by the American Medical Association in its policy on capital punishment. It forbids physician "participation" in executions.¹⁰⁷ This is particularly relevant here because of the Canadian Pharmacy Association's position that referral for euthanasia or assisted suicide does not constitute participation in the procedures.

XVIII.16 The AMA defines "participation" as

(1) an action which would directly cause the death of the condemned;
(2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned;
(3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

XVIII.17 Among the actions identified by the AMA as "participation" in executions are the prescription or administration of tranquillizers or other drugs as part of the procedure, directly or indirectly monitoring vital signs, rendering technical advice or consulting with the executioners, and even (except at the request of the condemned, or in a non-professional capacity) attending or observing an execution.

XVIII.18 The attention paid to what others might consider insignificant detail is exemplified in the provision that permits physicians to certify death, providing that death has been pronounced by someone else, and by restrictions on the donation of organs by the deceased.

XVIII.19 The AMA also prohibits physician participation in torture. Participation is defined to include, but is not limited to, "providing or withholding any services, substances, or knowledge to facilitate the practice of torture."¹⁰⁸ The Canadian Medical Association, while not faced with the problem of capital punishment, has voiced its opposition to physician involvement in the punishment or torture of prisoners. The CMA states that physicians "should refuse to allow their professional or research skills to be used in any way" for such purposes.¹⁰⁹

Complicity and referral

XVIII.20 While referral is not mentioned in the AMA policy on capital punishment, nor in the Canadian or American policies on torture, one cannot imagine that either the AMA or CMA would agree that physicians who refuse to participate in torture or executions have the duty to refer the state "in a timely manner" to other practitioners.¹¹⁰In fact, it is likely that both the CMA and AMA would censure a physician who did so voluntarily, on the grounds that such conduct would make him complicit in a gravely immoral act.

XVIII.21 It is reasonable to hold that the kind of action involved in referral is the same kind of action that is defined as "participation" in the AMA policies on capital punishment and torture. The model provided by the AMA policy indicates that, in principle, at least, it is not unreasonable for pharmacists to refuse to refer patients for procedures to which they object for reasons of conscience, on the grounds that referral would make them complicit in a wrongful act.

XVIII.22 The point here, of course, is not that capital punishment or torture are morally equivalent to euthanasia, assisted suicide, post-coital interception, etc. The point is that, when professional associations are convinced that an act is seriously wrong - even if it is legal - one finds them willing to refuse all forms of direct and indirect participation in order to avoid moral complicity in the act. This is precisely the position taken by conscientious objectors in health care.

CMPA: referrals and complicity

XVIII.23 In 2002 the College notified practitioners that it was the opinion of the Canadian Medical Protective Association (CMPA) that referral to non-regulated health care providers exposed physicians to civil liability "if medical problems arise during, or as a result of services provided by a non-regulated health care provider."

XVIII.24 The CMPA recommended that physicians "avoid all actions that could be construed as a patient referral to a non-regulated health care provider" - especially written referrals - and that physicians make clear to patients that it is their responsibility "to make all arrangements with the non-regulated health care provider." Further:

If the patient requires something in writing. . . the note should clearly indicate . . . that the physician, though not objecting, is neither referring nor recommending the patient for the treatment.¹¹¹

XVIII.25 The opinion of the CMPA was clearly based upon the premise that referral makes a physician complicit in what follows. The CMPA recommendations exactly parallel the position taken by pharmacists who refuse to refer patients for procedures or services the pharmacists believe to be wrong.

Complicity and dirty hands

XVIII.26 Having considered the problem of complicity, it is now worth asking why the subject of complicity in wrongful acts is not only of grave concern to ethical physicians, pharmacists, medical journals, and professional associations, but why it can so thoroughly arouse the public, the media, and politicians: why commissions of inquiry will so meticulously investigate the possibility of complicity, producing hundreds upon hundreds of pages of detailed analysis of the evidence taken, at no little cost to the public purse.

XVIII.27 A jaded few will respond that reports of scandal will always sell newspapers, that scandal always energizes the self-righteous (both the religious and the politically motivated varieties) and that scandal is one of the traditional weapons used against opponents by politicians of all stripes. There is some truth to this, but, going deeper into it, why is complicity in wrongdoing scandalous?

XVIII.28 The answer must be that there is something about complicity in wrongdoing that triggers an almost instinctive reaction in people, something about it that touches some peculiar, deep and almost universal sense of abhorrence. One says "almost" instinctive and "almost" universal because, of course, there have always been exceptions: Eichmanns, Pol Pots, Rwandan machete men, for example. And the degree of sensitivity varies from person to person, from subject to subject, and from one culture to another. Nonetheless, complicity in wrongdoing can be a source of scandal, a political weapon and the subject for public inquiries, only because it has some real and profound significance.

XVIII.29 The nature of that significance is suggested by a number of expressions: "poisoned" fruit doctrine, "tainted"evidence, money that has to be "laundered," and "dirty" hands.¹¹² A senior Iraqi surgeon, commenting on the complicity of physicians in torture under Saddam Hussein, said that "the state wanted them to have 'dirty hands'." In contrast, some writers refer approvingly to a "dirty hands principle":

Philosopher Sidney Axinn tells us the Dirty Hands principle "holds that in order to govern an institution one must sometimes do things that are immoral." He goes on to say that advocates would claim that "we do not want leaders who are so concerned with their own personal morality that they will not do `what is necessary' to ... win the battle.... We have an inept leader if we have a person who is so morally fastidious that he or she will not break the law when that is the only way to success" (Axinn, 1989: 138).¹¹³

But whichever view one takes of "dirty hands," all of these expressions convey an uncomfortable sense that something is felt to be soiled by complicity in wrongdoing. What is that something? And what is the nature of that cloying grime?

XVIII.30 The answer suggested by the Project is that the "something" is not a "thing" at all, but the human person, and that the sense of uncleanness or taint associated with complicity in wrongdoing is the natural response of the human person to something fundamentally opposed to his nature and dignity.

XIX. The needs of the patient: anthropology counts

XIX.1 What is conducive to human well-being is determined by the nature of the human person. There can be no agreement upon what is good for the patient without first agreeing upon that. One's understanding of the nature of the human person determines not only how one defines the needs of the patient, but how one approaches every moral or ethical problem in pharmacy or medicine.

XIX.2 Reasoning from different beliefs about what man is and what is good for him leads to different definitions of "need," different understandings of "harm," different concepts of right and wrong, and, ultimately, to different ethical conclusions.¹¹⁴

XIX.3 Consider two different statements: (a) man is a creature whose purpose for existence depends upon his ability to think, choose and communicate; b) man is a creature for whom intellect, choice and communication are attributes of existence, but do not establish his purpose for existence. Statements (a) and (b) express non-religious belief, not empirically verified fact. Such beliefs - usually implicit rather than explicit - direct the course of subsequent discussion.

XIX.4 Bioethicists working from (a) would have little objection to the substitution of persistently unconscious human subjects for animals in experimental research.¹¹⁵ Those who accept (b) would be more inclined to object.¹¹⁶ Finally, bioethicists who do not believe in 'purpose' beyond filling an ecological niche would dismiss the whole discussion as wrong-headed.

XIX.5 What must be emphasized is that when people cannot achieve a consensus about the morality of a procedure, it is frequently because they are operating from different beliefs about the nature of the human person. Disagreement is seldom about facts - the province of science - but about what to believe in light of them - the province of philosophy and religion.

XIX.6 The same thing is true of disagreements about freedom of conscience for health care workers. Returning to the point made in XIX.1 TO XIX.4, beliefs about the nature of the human person lie at the root of any attempt to set limits to this freedom. In fact, failure to engage at this level will probably frustrate more superficial efforts to resolve the conflict.

XIX.7 What follows is a plausible description of an aspect of the human person that is relevant to the present discussion. The threshold of plausibility ought to be sufficient, since the context for this discussion is a liberal democracy, in which there is an expectation that a plurality of more or less comprehensive world-views will be accommodated.

XX. The human person

The integrity of the human person

XX.1 The pharmacist, a unique someone who identifies himself as "I" and "me,"¹¹⁷ has only one identity, served by a single conscience that governs his conduct in private and professional life. This moral unity of the human person is identified as integrity, a virtue highly prized by Martin Luther King, who described it at as essential for "a complete life."¹¹⁸

[W]e must remember that it's possible to affirm the existence of God with your lips and deny his existence with your life. . . . We say with our mouths that we believe in him, but we live with our lives like he never existed . . . That's a dangerous type of atheism.¹¹⁹

XX.2 Against this, some writers have invoked the venerable concept of self-sacrifice. "Professionalism," Professor R. Alta Charo suggests rhetorically, ought to include "the rather old-fashioned notion of putting others before oneself."¹²⁰

XX.3 But self-sacrifice, in the tradition of King, Gandhi and Lewis, while it might mean going to jail or even the loss of one's life, has never been understood to include the sacrifice of one's integrity. To abandon one's moral or ethical convictions in order to serve others is prostitution, not professionalism. "He who surrenders himself without reservation," warned C.S. Lewis, "to the temporal claims of a nation, or a party, or a class" - one could here add 'profession' - "is rendering to Caesar that which, of all things, emphatically belongs to God: himself."¹²¹

XX.4 The integrity or wholeness of the human person was also a key element in the thought of French philosopher Jacques Maritain. He emphasized that the human person is a "whole, an open and generous whole" that to be a human person "involves totality." ¹²²

The notion of personality thus involves that of totality and independence; no matter how poor and crushed a person may be, as such he is a whole, and as a person subsists in an independent manner. To say that a man is a person is to say that in the depth of his being he is more a whole than a part and more independent than servile.¹²³

XX.5 This concept is not foreign to the practice of modern medicine. Canadian ethicist Margaret Somerville, for example, asserts that one cannot overemphasize the importance of the notion of 'patient-as-person' and acknowledges a "totality of the person" that goes beyond the purely physical.¹²⁴

The dignity and inviolability of the human person

XX.6 "Man," wrote Maritain, "is an individual who holds himself in hand by his intelligence and his will."

He exists not merely physically; there is in him a richer and nobler existence; he has spiritual superexistence through knowledge and through love.¹²⁵

XX.7 Applying this principle, Maritain asserted that, even as a member of society or the state, a man "has secrets that escape the group and a vocation which the group does not encompass."¹²⁶ His whole person is engaged in society through his social and political activities and his work, but "not by reason of his entire self and all that is in him."¹²⁷

For in the person there are some things - and they are the most important and sacred ones - which transcend political society and draw man in his entirety above political society - the very same whole man who, by reason of another category of things, is a part of political society.¹²⁸

XX.8 Even as part of society, Maritain insisted, "the human person is something more than a part;"¹²⁹ he remains a whole, and must be treated as a whole.¹³⁰ A part exists only to comprise or sustain a whole; it is a means to that end. But the human person is an end in himself, not a means to an end.¹³¹ Thus, according to Maritain, the nature of the human person is such that it "would have no man exploited by another man, as a tool to serve the latter's own particular good."¹³²

XX.9 British philosopher Cyril Joad applied this to the philosophy of democratic government:

To the right of the individual to be treated as an end, which entails his right to the full development and expression of his personality, all other rights and claims must, the democrat holds, be subordinated. I do not know how this principle is to be defended any more than I can frame a defence for the principles of democracy and liberty.¹³³

In company with Maritain, Professor Joad insisted that it is an essential tenet of democratic government that the state is made for man, but man is not made for the state.¹³⁴

XX.10 To reduce human persons to the status of tools or things to be used for ends chosen by others is reprehensible: "very wicked," wrote C.S. Lewis.¹³⁵ Likewise, Martin Luther King condemned segregation as "morally wrong and awful" precisely because it relegated persons "to the status of things."¹³⁶

XX.11 Similarly, Polish philosopher Karol Wojtyla (later Pope John Paul II):

. . . we must never treat a person as a means to an end. This principle has a universal validity. Nobody can use a person as a means towards an end, no human being, nor yet God the Creator.¹³⁷

XX.12 Maritain, Joad, Lewis, King and Wojtyla reaffirmed in the twentieth century what Immanuel Kant had written in the eighteenth: "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."¹³⁸

Human dignity and freedom of conscience

XX.13 Perhaps ironically, this was the approach taken when Madame Justice Bertha Wilson of the Supreme Court of Canada addressed the issue of freedom of conscience in the landmark 1988 case R v. Morgentaler. Madame Justice Wilson argued that "an emphasis on individual conscience and individual judgment . . . lies at the heart of our democratic political tradition."¹³⁹ 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.¹⁴⁰

XX.14 "Everyone" includes every pharmacist. But, at this point in the judgement, Wilson 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."¹⁴¹

XX.15 Quoting the above passage from Professor Joad's book, Wilson approved the principle than a human person must never be treated as a means to an end - especially an end chosen by someone else, or by the state. Wilson rejected the idea that, in questions of morality, 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'."¹⁴²

XXI. Summing up: mandatory referral or assistance

XXI.1 Issue No. 1 reprise: The primary issue raised by the Draft Code of Ethics is whether or not the College of Pharmacists of Alberta demand that a pharmacist actively facilitate a service or procedure he believes to be wrong, such as euthanasia, assisted suicide or post-coital interception. Put another way, should a pharmacist's conscientious refusal to refer to refer patients or assist them in obtaining euthanasia, assisted suicide, post-coital interception, etc. constitute professional misconduct?

XXI.2 Parts VIII to XVII demonstrate that arguments commonly advanced to support the notion that pharmacists should be forced to refer services to which they object for reasons of conscience are faulty or inadequate. Part XVIII and XIX suggest that any attempt to propose ethical guidelines for referral must fully address the issue of complicity in wrongdoing and the nature of the human person.

XXI.3 Part XX argues that a long philosophical tradition, stretching from at least Immanuel Kant to R. vs. Morgentaler and beyond, insists that the nature of the human person is such no one should be exploited by another by being reduced to the status of a tool or thing: that it is reprehensible to use a human person for ends chosen by others. Within this tradition, self-sacrifice, has never been understood to include the sacrifice of one's integrity. To abandon one's moral or ethical convictions in order to serve others is prostitution, not professionalism: once more, servitude, not service.

XXI.3 In the tradition of Kant, C.S. Lewis, Martin Luther King, Cyril Joad and Karol Wojtyla, and following Madame Justice Wilson in R. vs. Morgentaler, to demand that pharmacists provide or assist in the provision of procedures or services that they believe to be wrong is to treat them as means to an end and deprive them of their "essential humanity."

XXI.4 Issue No. 1: conclusion A pharmacist's conscientious refusal to refer to refer patients or assist them in obtaining euthanasia, assisted suicide, post-coital interception, etc. should not constitute professional misconduct. The College of Pharmacists of Alberta should not demand that a pharmacist actively facilitate a service or procedure he believes to be wrong. The Draft Code of Ethics should be revised to ensure that the document cannot be used for this purpose.

XXII. The need to explicitly address freedom of conscience

XXII.1 Of the 39 English language pharmacy associations or regulatory entities noted in Appendices "A" to "C," 29 have formally addressed the issue of freedom of conscience, either in codes of ethics or in practice guidelines, or both. In Canada, the subject has been considered by all of the English language pharmacy regulatory authorities, as well as NAPRA and the Canadian Pharmacists Association. This suggests that there is a need to include specific, unambiguous and ethically sound guidelines on the issue in the proposed Code of Ethics.

XXII.2 A second reason for including specific, unambiguous and ethically sound guidelines that protect freedom of conscience in the profession is provided by the continual efforts of powerful or influential individuals or groups to suppress freedom of conscience in health care. In the absence of such guidelines, they are likely to encourage harassment of objecting pharmacists, with a view to forcing them to participate in what they consider to be morally objectionable services, or forcing them out of the profession.

XXII.3 Ethically sound guidelines will balance respect for the personal integrity of the pharmacist and for his fundamental freedoms against the provision of pharmacy services to the patient, giving to each what is due in justice.

XXIII. In search of consensus

XXIII.1 Not one of the 29 English language pharmacy associations or authorities noted in Appendices "A" to "C" that have addressed the issue of freedom of conscience prohibits conscientious objection. Only one - the College of Pharmacists of British Columbia - would require an objecting pharmacist to supply drugs for euthanasia, assisted suicide, post-coital interception, etc.. Only two (Arkansas and Georgia State Pharmacy Boards) impose no duties on an objector, perhaps reflecting state laws.

XXIII.2 Given the professional and regulatory responses summarized in Appendices "A", "B"and "C", it is impossible to argue that there is a genuine ethical consensus that objecting pharmacists should be forced to provide drugs for euthanasia, assisted suicide, or post-coital interception. Nor is it possible to argue that such a consensus exists on the issue of referral. In this respect, it is noteworthy that regulators have sometimes see-sawed back and forth: Ontario is one case in point; the present Draft Code of Ethics for pharmacists in Alberta is another.

XXIII.3 Instead, the majority of responses surveyed repeatedly attempt to articulate what may be reasonably required of a conscientious objector, short of referral or some other kind of positive act. The range of responses is set out in Appendix "A." 20 of 29 entities with policies concerning freedom of conscience fall within one of two categories:

• Systemic Cooperation (13)

  The objecting pharmacist is not required to directly assist in the delivery of a drug or service, but is to work cooperatively within a system that allows patients to access controversial drugs and services through other sources.

• Personal Action or Systemic Cooperation (7)

  An objecting pharmacist may directly assist in the delivery of a drug or service by referral to a specific person or entity, or by some other act, OR work cooperatively within a system that allows patients to access controversial drugs and services through other sources.

Personal action or systemic cooperation

XXIII.4 Referral requires a positive action by an objector to facilitate euthanasia, assisted suicide, post-coital interception, etc. So, too, does a policy like NAPRA's, which demands that an objector "pre-arrange access to an alternate source." Five Australian and two Canadian pharmacy authorities are described as requiring either personal action or systemic cooperation. A closer look at their responses is warranted.

XXIII.5 The 1998 Code of Ethics of the Pharmaceutical Society of Australia states that objecting pharmacists have a duty to ensure continuity of care, and, "when required, assist and refer clients to another pharmacist" for that purpose. Under what circumstances assistance and referral might be required is not considered.

XXIII.6 However, the issue of conscientious objection is discussed at length in a 2003 Society policy statement, Ethical Issues in Declining to Supply. At least four of Australia's state pharmacy boards adhere to standards set by the Pharmaceutical Society of Australia. It is reasonable to assume that they are also guided by this statement. It does not insist upon referral or assistance, but advises that someone (unspecified) may have to "identify another reasonably available source for the required medicine or service" if conscientious objection results in "nonsupply of a product or service." It suggests that, "where a pharmacist's moral belief is likely to impact on the pharmacy services available to patients," pharmacists and their employers should agree upon strategies to accommodate objectors and patients, and steps should be taken by the owner or manager to inform patients of service limitations and alternative sources of pharmacy service. The statement makes clear that this kind of systemic cooperation would be consistent with the Society's Code of Ethics, although it cautions that there might be other legal ramifications for an objector.

XXIII.7 The current position of two Canadian authorities, including the Alberta College of Pharmacists, is quite similar to that of the five Australian entities.

XXIII.8 The Alberta College of Pharmacists currently asserts that objecting pharmacists "must make reasonable efforts to ensure that clients are able to obtain these services from another authorized provider." More specifically, it states that objectors must "arrange the condition of their practice" to ensure continuity of care, and advises them to give timely notice of their views to their employers, presumably to enable their employers to accommodate both objectors and patients. Thus, the "reasonable efforts" envisioned could include making the kind of arrangements described in XXIII.6, and need not involve active facilitation of euthanasia, assisted suicide, post-coital interception, etc..

XXIII.9 The policy of the Saskatchewan College of Pharmacists on conscientious objection is less precise. It states that the objector's duty of care "might" require referral or pre-arrangement of "access to an alternate source," thus falling short of a demand for referral. It is reasonable to believe that the arrangements described in XXIII.6 would be acceptable in Saskatchewan.

Systemic cooperation

XXIII.10 The majority of responses indicate a preference for what is here described as "systemic cooperation." A glance at a few of the policies will suffice to explain what this means.

XXIII.11 The Manitoba Pharmaceutical Society requires objectors "to participate in a system designed to respect a patient's right to receive pharmacy products and services," without further specifying the nature of the participation. The same expectation is found in the Codes of Ethics of pharmacy colleges in New Brunswick and Newfoundland, which add that the system "must be pre-arranged." They do not, however, identify the party responsible for the pre-arrangement. Consistent with these statements, pharmacy authorities in Nova Scotia and New Zealand require objectors to notify their managers, who are charged with the duty of arranging the practice to accommodate objecting pharmacists and patients. Similarly, the American Pharmacists Association "supports the ability of the pharmacist to step away, not in the way, and supports the establishment of an alternative system for delivery of patient care."

XXIII.12 The common element in these policies is that the responsibility to arrange access to assisted suicide, euthanasia or post-coital interception is not imposed on those who object to these services, but lies with those who do not. What is required of objecting pharmacists is that they notify their supervisors and colleagues of their views and cooperate with them as they accommodate their conscientious convictions and the desires of patients. They may not interfere with arrangements being made by others for assisted suicide, euthanasia , post-coital interception, etc., but they are not expected to help with them.

The key distinction

XXIII.13 The preceding discussion highlights the key distinction. Policies that demand that objectors make arrangements for alternative delivery or refer a patient require a positive act, while those that call for systemic cooperation do not. The result is same in both cases (the patient accesses euthanasia, assisted suicide, post-coital interceptives, etc.), but the former demand active participation by an objector in conduct he believes to be wrong.

XXIII.14 This explains why objectors often vehemently refuse demands that they refer or otherwise help a patient obtain controversial services, but may well be willing to work cooperatively within a system in which controversial services are provided by others.

XXIV. The way forward

XXIV.1 The furor that resulted last year when it was suggested that Ontario physicians should be forced to refer for abortion and other controversial procedures demonstrates that a demand for referral is far more likely to generate significant and heated resistance from objectors than accommodation through a policy of systemic cooperation. Further, the fact that the majority of the pharmacy entities noted in Appendices "A" to "C" have already adopted this approach suggests that accommodation of pharmacists' freedom of conscience and patients' desire for service can be achieved in this way.

Modifying the approach

XXIV.2 Under a policy of systemic cooperation, the obligation to arrange access to euthanasia, assisted suicide, post-coital interception, etc. lies with pharmacy management, the pharmacy owner or others, not the objecting pharmacist. The obvious drawback to this is that it effectively bars objecting pharmacists from management positions and ownership of pharmacies. It is reasonable to ask if a policy of systemic cooperation can be modified to reduce this adverse effect.

XXIV.3 Such a modification is suggested by the opening of a pharmacy operating as an entity of Divine Mercy Care, a Catholic health care organization, in Chantilly, Virginia. DMC Pharmacy will not dispense, recommend or counsel for contraceptives and will adhere to other aspects of Catholic teaching. The pharmacy manager has expressed gratitude for the opportunity to work in an environment that respects his conscientious convictions. The pharmacy is intended to cater to "a special niche" of people who have similar views. Unlike some other states that have made ownership or management of pharmacies impossible for citizens who share such convictions, Virginia does not require pharmacies to carry or refer for contraceptives. NARAL Pro-Choice America recommends that the pharmacy be boycotted because it "doesn't respect [patient] choices." ¹⁴³

XXIV.4 The operation of the pharmacy, on the one hand, and the call for a boycott, on the other, demonstrates an appropriate balance in the exercise of freedom of conscience by parties with different views.

XXIV.5 Other suggestions might be proposed, but it is obvious that a policy of systemic cooperation can be modified so that it does not require any positive act on the part of pharmacists who own pharmacies, or who manage or are employed in pharmacies that publicly identify the scope of their practice to exclude certain services.

XXV. Summing up: accommodating pharmacists and patients

XXV.1 Issue No. 2: reprise. Should the College of Pharmacists of Alberta include in its Code of Ethics provisions that honour and fully accommodate the exercise of freedom of conscience by pharmacists? If so, how can this be done?

XXV.2 Part XXII explains why the Code of Ethics should include specific provisions to honour and fully accommodate the exercise of freedom of conscience by pharmacists. Parts XXIII and XXIV suggest, in general terms, the kind of policy that would accommodate objecting pharmacists and the desire of patients for pharmacy service.

XXV.3 Issue No. 2: conclusion. The College of Pharmacists of Alberta should include in its Code of Ethics a unambiguous policy of accommodating freedom of conscience through systemic cooperation that does not require active participation by an objecting pharmacist in conduct he believes to be wrong. The policy should not apply to pharmacists who own, manage or are employed in pharmacies that clearly and publicly identify the scope of their practice to exclude certain services.

XXVI. Recapitulation

XXVI.1 The Draft Code of Ethics does not address the situation of a pharmacist who, for reasons of conscience, refuses to fill a prescription for assisted suicide, euthanasia or post-coital interception. Further, it fails to define key terms, thus complicating its application in such a case.

XXVI.2 The failure to define or limit key terms strongly suggests that pharmacists will be expected to enhance access to assisted suicide or euthanasia, even if they object to the procedures for reasons of conscience. At the least, a limitless obligation to "enhance access" provides limitless opportunities to prosecute objectors for professional misconduct.

XXVI.3 This is particularly troubling because references to accommodation of freedom of conscience in the current Code have been removed from the Draft Code. It is not unreasonable to believe that deletion of reference to accommodation of freedom of conscience and the construction of the Draft Code are intended to force objecting pharmacists to enhance access to euthanasia, assisted suicide, post-coital interception, etc. (Part VIII, Draft Code), and to compel them to assist the patient to obtain such services in a timeframe acceptable to the patient (Part V Draft Code).

XXVI.4 To impose this requirement would effectively close the profession of pharmacy to anyone who finds such conduct morally unacceptable. It would present current members who would refuse to facilitate assisted suicide, euthanasia or post-coital interception with the choice of compromising their personal integrity or leaving the profession.

XXVI.5 Arguments commonly advanced to support the notion that pharmacists should be forced to refer services to which they object for reasons of conscience are faulty or inadequate, in that they fail to fully address the issue of complicity in wrongdoing and the nature of the human person.

XXVI.6 A long philosophical tradition, stretching from at least Immanuel Kant to R. vs. Morgentaler and beyond, insists that the nature of the human person is such that no one should be exploited by another by being reduced to the status of a tool or thing: that it is reprehensible to use a human person for ends chosen by others. Within this tradition, self-sacrifice has never been understood to include the sacrifice of one's integrity. To abandon one's moral or ethical convictions in order to serve others is prostitution, not professionalism: servitude, not service.

XXVI.7 In the tradition of Kant, C.S. Lewis, Martin Luther King, Cyril Joad and Karol Wojtyla, and following Madame Justice Wilson in R. vs. Morgentaler, to demand that pharmacists provide or assist in the provision of procedures or services that they believe to be wrong is to treat them as means to an end and deprive them of their "essential humanity."

XXVI.8 A pharmacist's conscientious refusal to refer to refer patients or assist them in obtaining euthanasia, assisted suicide, post-coital interception, etc. should not constitute professional misconduct. The College of Pharmacists of Alberta should not demand that pharmacists actively facilitate a service or procedure they believe to be wrong. The Draft Code of Ethics should be revised to ensure that the document cannot be used for this purpose.

XXVI.9 The College of Pharmacists of Alberta should include in its Code of Ethics a unambiguous policy of accommodating freedom of conscience through systemic cooperation that does not require active participation by an objecting pharmacist in conduct he believes to be wrong. The policy should not apply to pharmacists who own, manage or are employed in pharmacies that clearly and publicly identify the scope of their practice to exclude certain services.

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