Abstract

The policy Conscientious Refusal requires all physicians who object to a procedure for reasons of conscience to facilitate the procedure by referring patients to a colleague who will provide it, even if it is homicide or suicide.  No evidence was provided to justify the policy.  None of the arguments provided to Council justify the policy, nor do the principles included in the text.

Conscientious Refusal fails to recognize that the practice of medicine is a moral enterprise, that morality is a human enterprise, and that physicians, no less than patients, are moral agents.

The original text virtually copied by Conscientious Refusal was written by believers: by people who believe that whatever is "legally permissible and publicly-funded" is morally acceptable- including euthanasia, assisted suicide and abortion. It is an assertion of those beliefs and an authoritarian attempt to compel others to conform to them. It is a partisan document that is profoundly disrespectful of the moral agency of physicians, not a compromise.

Conscientious Refusal advances the dangerous idea that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong and punish them if they refuse. This is not a limitation of fundamental freedoms, but a serious violation of human dignity. It is also incoherent, because it posits the existence of a moral or ethical duty to do what one believes to be wrong.

The Associate Registrar has made it clear that those who refuse to do what the policy demands will be disciplined by the College or forced out of the medical profession. This clashes seriously with the approach taken by the Supreme Court of Canada, which has affirmed that public policy must make room for physicians whose "concept of the good life" precludes their participation in abortion, euthanasia, assisted suicide or other morally contested procedures.

The burden of proof was on the Associate Registrar and the appointed committee to prove beyond doubt that Conscientious Refusal is justified and that no less authoritarian alternatives are available.  They failed to discharge that burden; neither has College Council discharged it. The policy should be withdrawn.

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TABLE OF CONTENTS

I.    Origin of the draft policy, Conscientious Refusal

II.    Content of the proposed policy

III.    Focus of this submission

IV.    Justification for the proposed policy

V.    The issues

VI.    Response to the issues

• VI.1    Does the proposed policy adversely affect freedom of conscience or religion?
• VI.2    Is the policy justified by evidence provided to Council?
• VI.3    Is the policy justified by the arguments provided to Council?
  • Arguments not offered
  • The argument offered
    • VI.3.5    Appeals to authority
    • VI.3.6    Appeal to consensus
    • VI.3.7    Claim of administrative convenience
  • Response to the argument
    • VI.3.8    Appeals to authority
    • VI.3.9    Appeal to consensus
    • VI.3.10    Administrative convenience
    • Summary
    • VI.3.15    Conclusion
• VI.4    Is the policy justified by the principles included in the policy?
  • VI.4.2    ". . .an obligation to serve and protect the public interest."
  • VI.4.3    ". . .medical profession as a whole has obligation to ensure access."
  • VI.4.4    ". . . physicians not to interfere with or obstruct access."
  • VI.4.5    ". . .physicians not to abandon their patients."
  • VI.4.6     ". . . legally permissible and publicly-funded . . ."
  • VI.4.7    ". . . health services. . . health . . . well-being. . ."
  • Summary
  • VI.4.12    Conclusion
• VI.5    Is the policy a compromise?
  • VI.5.9    Conclusion

VII.    Discussion

• VII.5    Medicine is a moral enterprise.
• VII.6    Consider first the well being of the patient.
• VII.7    Morality is a human enterprise.
• VII.8    A secular public square includes religious belief.
• VII.9.   Avoid authoritarian solutions.
• VII.10  There is no duty to do what is believed to be wrong.
• VII.11  Forcing someone to do wrong is violation, not limitation.
• VII.12. Accommodate different conceptions of "the good life."

VIII.    Conclusions

Appendix "A": Origin of the CPSS Draft Policy

• AI.    Attempts to coerce physicians: abortion
• AII.    Plans to coerce physicians: assisted suicide and euthanasia
• AIII.    Plans to coerce physicians: the CRG Model Policy
• AIV.    Saskatchewan College replicates the CRG Model

Appendix "B":  Development of the CPSS Draft Policy

• BI.    Conscience Research Group (CRG)
• BII.    CRG convenes meeting with College representatives
• BIII.   Meeting of Registrars of BC, Alberta, Saskatchwan, Manitoba and Ontario
• BIV.    Controversy about Alberta physician declining to prescribe contraceptives
• BV.    Canadian Registrars advised to adopt uniform coercive policy
• BVI.    Memo to College Council proposes policy on "ethical objection"
• BVII.    College Council approves formation of committee
• BVIII.    Committee meeting
• BIX.    Council approval in principle

Appendix "C": Interview of CPSS Associate Registrar

Appendix "D":  Ontario, Alberta, Manitoba and Saskatchewan College Policies

• DII.    College of Physicians and Surgeons of Ontario
• DIII.    College of Physicians and Surgeons of Alberta
• DIV.    College of Physicians and Surgeons of Manitoba
• DV.    College of Physicians and Surgeons of Saskatchewan

Appendix "E":  College of Physicians and Surgeons of Saskatchewan Re: Guideline: Unplanned Pregnancy

Appendix "F":  Morally Significant Participation

• FI.    Conscientious Refusal within the context of Carter
• FII.    "The serious moral burdens of complicity"
• FIII.    "Parties" to killing
• FIV.    Participation in killing
  • FIV.2    World Medical Association
  • FIV.3    American Medical Association
• FV.    Participation in torture
  • FV.2    Extraordinary rendition
  • FV.3    Maher Arar
  • FV.4    Physician participation in torture
• FVI.    Participation in female genital cutting (mutilation)
• FVII.    Refusing to participate

Appendix "G":  Notes on Referral, Abandonment and Fiduciary Duty

• GI.    Referral and abandonment

 

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I.    Origin of the draft policy, Conscientious Refusal

I.1    The text of the draft policy, Conscientious Refusal, originates in a model conscientious objection policy drafted by members of the Conscience Research Group (CRG). The Group includes euthanasia/assisted suicide and abortion activists who are determined to force physicians who are unwilling to provide abortions, kill patients or help them commit suicide to find a colleague willing to do so. Having been unable to convince the Canadian Medical Association to adopt such a policy, they decided to convince provincial regulatory authorities to impose it (Appendix "A").

I.2    It appears that Saskatchewan Associate Registrar Bryan Salten was among the participants at a meeting convened by the Conscience Research Group in 2013 to further this objective.  The proposed CRG policy was presented and discussed. Mr. Salte left the meeting with the text agreed upon by meeting participants, almost an exact duplicate of what the CRG published later in 2013 as its Model Conscientious Objection Policy (MCOP). (Appendix "B", BII.)

I.3    Subsequently, Mr. Salte appears to have taken on the project of convincing regulatory authorities to adopt what he called the "draft policy statement developed by the Conscientious Objections Working Group."

I.4    Mr. Salte appears to have led discussion of the subject at a meeting of the Registrars of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario on 5 May, 2014. He said that there there seemed to be a "consensus" among the Registrars that provincial Colleges should consider adopting the policy (Appendix "B", BIII). Two months later, he wrote to all of the Registrars of Colleges of Physicians in Canada, providing them with a copy of it and urging them to do just that. He advised them that Saskatchewan’s College Council would be considering the policy at its upcoming meeting (Appendix "B", BV). The Council was not meeting until September, so it is not certain that, at the time Mr. Salte wrote to the other Colleges, Council members were aware of what he had in store for them.

I.5    Making explicit reference to the possibility of the legalization of physician assisted suicide, and explicitly acknowledging that the subject was potentially "very controversial," Mr. Salte urged all Canadian Registrars to adopt a uniform policy - obviously, the one he was proposing to them, or one much like it. He argued that this was necessary to ensure that no College was placed in the difficult position of being an "outlier" on such a controversial subject (Appendix "B", BV).

I.6    Since the policy he was proposing would require physicians unwilling to kill patients or help them commit suicide to help find a colleague willing to do the killing, it seems obvious that his intention was to make this the ethical standard for medical practice throughout Canada. In the face of the historic opposition of the Canadian Medical Association and the controversy attending demands for compulsory referral, it is not surprising that Mr. Salte seems to have adopted the CRG strategy of suppressing opposition by a unilateral and monolithic exercise of regulatory power.

I.7    College Council discussed the memo provided by Mr. Salte at its September, 2014 meeting. The memo included a draft policy virtually identical to the CRG’s Model Conscientious Objection Policy. (Appendix "B", Note 6)

I.8    It is significant that Mr. Salte took care to avoid identifying the Conscience Research Group as the ultimate source of the policy. Instead, he identified the participants in the meeting noted in I.2 as "the Conscientious Objections Working Group" - "a group that was formed with a grant to study and provide recommendations to Canadian Colleges of Physicians and Surgeons" concerning physician conscientious objection.1 This was at least a misleading oversimplification, if not a misrepresentation.

I.9    The committee formed to study the question met once, and no minutes were kept. The committee added a sentence to Conscientious Refusal that warns physicians not to promote their moral or religious beliefs, and deleted references to discipline and complaints they considered superfluous. For the rest, the few textual differences that exist between Conscientious Refusal and MCOP are not significant (Appendix "A"). On 20 January, Council approved the policy in principle and authorized external consultation.

II.    Content of the proposed policy

II.1    Conscientious Refusal is divided into several sections.  The two sections of concern are "Principles" and "Obligations."

II.2    Under "Principles" one finds broad statements that are apparently intended to provide the foundation for the obligations that follow.  However, some of the principles and some of the terminology used serves no purpose apart from providing a rhetorical pretext for the coercive and tendentious elements found later in the policy, and are, moreover, misleading with respect to the obligations of physicians.

II.3    The Obligations include some commonplace duties that are uncontroversial, others that require qualification if they are to be broadly acceptable, and purported obligations that are advanced in order to force objecting physicians to do what they believe to be wrong. These are disputed, and are the focus of this submission.

III.    Focus of this submission

III.1    This submission focuses on two passages in Conscientious Refusal:

5.3  Providing referrals for health services
Physicians can decline to provide legally permissible and publicly-funded health services if providing those services violates their freedom of conscience.  However, in such situations, they must make a timely referral to another health care provider who is willing and able to accept the patient and provide the service.

5.4  Treating patients
When a referral to another health care provider is not possible without causing a delay that would jeopardize the patient's health or well-being, physicians must provide the patient with all health services that are legally permissible and publicly-funded and that are consented to by the patient or . . . substitute decision maker.  This obligations holds even in circumstances where the provision of health services conflicts with physicians' deeply held and considered moral or religious beliefs.

III.2   During an interview in February, 2015, Mr. Salte confirmed that, if the policy is adopted, physicians will be expected to do what they believe to be wrong, including referral for assisted suicide(Appendix "C", CIII.4).  He made it clear that, if the policy is approved, physicians unwilling to comply could face discipline, including cancellation of their licenses to practice, since refusing to arrange for a colleague to help a patient commit suicide would be considered "unacceptable or unprofessional."(Appendix "C", CV.I)

III.3    This is a dangerous and extraordinarily authoritarian policy that is completely at odds with liberal democratic aspirations and Canadian traditions.  The burden of proof was on Mr. Salte and the appointed committee to prove beyond doubt that it is justified and that no reasonable alternatives to the policy are available. 

IV.    Justification for the proposed policy

IV.1    Taking note of controversial ethical issues like abortion, contraception, assisted suicide, fetal sex selection and genetic testing, Mr. Salte observed that strong views "from different perspectives" had been expressed during a consultation underway in Ontario about Physicians and the Human Rights Code. He then asserted that the draft policy had the support of the Registrars of B.C., Alberta, Manitoba and Ontario.

My perspective is that if there can be a consistent position across Canada, it will greatly help in addressing this difficult issue, which many people feel very strongly about.

As a member of the conscientious objections working group which developed the recommendations I am not unbiased. However, I think that a document which generally follows what is in the document would be useful to establish expectations for physicians and guidance to the College when it deals with physicians who have ethical or moral objections to providing certain forms of care.2

IV.2    The argument was supported by a newspaper article quoting an ethicist who claimed that objecting physicians are obliged to refer for morally contested services (Appendix "B", BVI.3) and a paper from a professional journal reporting the results of a survey of opinions of 154 physicians in a Wisconsin faculty of medicine (Appendix "B", BVI.4).

IV.3    Mr. Salte also provided the newspaper article about the Calgary physician who was refusing to prescribe contraceptives, apparently as evidence supporting the argument.  The article did not make clear that no patient had been denied contraception or had been unable to obtain it, and concluded with a sentence erroneously implying that the Alberta College of Physicians had a policy requiring objecting physicians to refer for morally contested procedures (Appendix "B", BIV).

IV.4    Attachments to the memo included policies of the Ontario,3 Alberta4 and Manitoba5 Colleges of Physicians and the Saskatchewan College policy on Unplanned Pregnancy.6  He extracted two sections of the Saskatchewan policy and highlighted them in the memo:

Any physician who is unable to be involved in the further care and management of any patient when termination of the pregnancy might be contemplated should inform the patient and make and expeditious referral to another available physician.

5)  Will fully apprise the patient of the options she may pursue and provide her with accurate information relating to community agencies and services that may be of assistance to her in pursuing each option.7

IV.5    The documents and quotes noted in IV.4 could create the impression that a policy of mandatory referral by objecting physicians existed elsewhere and was already the policy of the College in Saskatachewan with respect to abortion. 

IV.6    Contrary to the impression that may have been created by Mr. Salte's memo, the policies he provided do not require an objecting physician to refer a patient to a colleague who will provide a morally contested service (Appendix "D", "E").  In this regard, it is disturbing to find that Mr. Salter later publicly made this claim, which is false (Appendix "C", CIII.1, CIII.1-note).

IV.7    Discounting the policies noted in IV.4,  the argument and evidence presented by Mr. Salte can be summarized as follows.

Since

• people have strongly held ethical or moral convictions about killing developing infants in utero, helping people to commit suicide, killing fetuses for reasons of sex, genetic testing and provision of contraception; and

• by virtue of their strong convictions, some physicians are unwilling to do such things or to arrange for them to be done because they consider them evil, even if legal; and

• other people of equally strong convictions want physicians made to provide these services or arrange for them because they are legal, and are upset if they refuse; and

• less than half of physicians surveyed in a Wisconsin University believe that objecting physicians have an obligation to refer for morally contested procedures, and a Canadian ethicist agrees; and

• participants in closed meetings held in 2013 and 2014 also think physicians unwilling to provide morally contested services for reasons of conscience should be forced to facilitate them by referral or other means; and

• it is administratively prudent for regulators to adopt a uniform and consistent policy across the country;

therefore,

• physicians unwilling to kill developing infants in utero, kill people or help them to commit suicide, kill fetuses for reasons of sex, or unwilling to provide any other legal service for reasons of conscience are ethically obliged help to arrange for the services to be provided by someone else, and should be punished if they refuse. 

Hence, the policy Conscientious Refusal is justified.

IV.8    As noted in II, the policy includes principles that purport to justify the obligations Conscientious Refusal would impose.

IV.9    There is no indication that the Council had before it or asked for any other arguments, reasons or evidence before it when it approved Conscientious Refusal in principle.  However, Mr. Salte subsequently claimed that the policy was a compromise (Appendix "C", CV.4).

V.    The issues

V.1    Does the proposed policy adversely affect freedom of conscience or religion?

V.2    If the policy adversely affects freedom of conscience or religion, is it, nonetheless, justified by evidence provided to Council?

V.3     If the policy adversely affects freedom of conscience or religion, is it, nonetheless, justified by the arguments provided to Council?

V.4    If the policy adversely affects freedom of conscience or religion, is it, nonetheless, justified by the principles included in the policy?

V.5    Is the policy a compromise?

VI.    Response to the issues

VI.1    Does the proposed policy adversely affect freedom of conscience or religion?

VI.1.1    To the extent that the policy requires some physicians to do what they believe to be wrong, the policy Conscientious Refusal adversely affects freedom of conscience or religion. 

VI.1.2    Killing patients, helping patients commit suicide, and the killing of infants developing in utero are understood to be the subject of significant moral and ethical disagreement, both inside and outside the medical profession.  While these procedures generate the most notable disagreement, moral and ethical disputes are entangled around other issues as well, such as contraception and eugenics.  Mr. Salte's memo explicitly adverts to this.  The existence of these controversies is one of the elements in his justification of the policy.

VI.1.3    The policy Conscientious Refusal affects physicians unwilling to kill patients or help them commit suicide for reasons of conscience or religion.  Indeed, Mr. Salte has explicitly stated that the policy was developed with physician assisted suicide in mind (I.5, III.2).  In addition, the policy is applicable to physicians who, for reasons of conscience or religion, refuse to kill developing infants in utero or to provide other legal, publicly-funded services. 

VI.1.4     Conscientious Refusal requires all such physicians to facilitate the services by referring patients to a colleague who will provide them.  This is widely recognized as a form of morally significant participation (Appendix "F"). 

VI.1.5    The policy demands that physicians do what they believe to be wrong - even gravely wrong - even arranging homicide or suicide.  Mr. Salte is clear that those who refuse to do what the policy demands will be disciplined by the College or forced out of the medical profession (Appendix "C", CV.1).

VI.2    Is the policy justified by evidence provided to Council?

VI.2.1    Given the obligations of the College, it might be reasonable for Council to adopt Conscientious Refusal if it were demonstrated that the policy is necessary to ensure that medical practice in the province is safe, competent, ethical and safeguards the health of patients.

Evidence not provided

VI.2.2    Neither Mr. Salte nor the committee provided any evidence

• that anyone in Saskatchewan has ever been unable to access medical services because a physician has declined to provide or refer for a procedure for reasons of conscience; or

• that the health of anyone in Saskatchewan has ever been adversely affected because a physician has declined to provide or refer for a procedure for reasons of conscience; or

• that physicians who refuse to do what they believe to be wrong are guilty of unethical practice.

The evidence provided

VI.2.3    The only evidence provided to Council concerned a complaint by a woman about a Calgary physician who does not prescribe contraceptives.  The woman who complained does not appear to have been her patient.  She was simply angry because the physician was not prescribing contraceptives.  There is no evidence that she was refused a prescription or that she or anyone else was unable to access contraceptives because of the physician's practice (Appendix "B", BIV).

VI.3    Is the policy justified by the arguments provided to Council?

VI.3.1    Given the obligations of the College, it might be reasonable for Council to adopt Conscientious Refusal if it were provided with arguments demonstrating that the policy is necessary to ensure that medical practice in the province is safe, competent, ethical and safeguards the health of patients.

Arguments not offered

VI.3.2    Neither Mr. Salte nor the committee argued

• that medical practice in Saskatchewan will be unsafe unless Conscientious Refusal is adopted; or

• that Conscientious Refusal is necessary to ensure the competence of medical practice in Saskatchewan; or

• that anyone in Saskatchewan will be unable to access medical services if physicians decline to provide or refer for a procedure for reasons of conscience; or

• that the health of anyone in Saskatchewan will be at risk if physicians decline to provide or refer for a procedure for reasons of conscience; or

• that physicians who refuse to do what they believe to be wrong are guilty of unethical practice.

The argument offered

VI.3.3    The argument offered began with the reasonable observation that there are markedly different ethical or moral beliefs concerning legal and publicly funded (or soon to be legal and publicly funded) controversial procedures like assisted suicide, euthanasia and abortion, and conflicts are likely to arise between patients who want these services and physicians unwilling to provide them. 

VI.3.4    However, this observation alone was merely descriptive of a present or anticipated state of affairs: a description of an "is."  The mere fact of disagreement was not sufficient to justify the conclusion that objecting physicians ought to be forced to provide or refer for the services.  Something more was needed.  Mr. Salte offered something more in the form of appeals to authority, and appeal to consensus, and a claim that priority should be given to administrative convenience.

VI.3.5    Appeals to authority

VI.3.5.a    Mr. Salte appealed to the authority of a single ethicist, Arthur Schafer, who believes that objecting physicians are obliged to help patients obtain the procedures to which they object by referral (Appendix "B", BVI.3). 

VI.3.5.b    Mr. Salte appealed to the authority of the collective opinion of less than half the faculty of Family Medicine at the University of Wisconsin, as derived by a survey conducted in 2011.   (Appendix "B", BVI.4). 

VI.3.6    Appeal to consensus

VI.3.6.a    Mr. Salte also appealed to the consensus of largely (and sometimes purposefully) unidentified participants in closed meetings held in 2013 and 2014.  He argued that the consensus arising from these meetings was that objecting physicians should be forced to help patients obtain legal and publicly-funded services (which will now include euthanasia and assisted suicide) (Appendix "B", BII, BIII).

VI.3.7    Claim of administrative convenience

VI.3.7.a    The final reason offered by Mr. Salte to adopt Conscientious Refusal was his concern that the failure to adopt a uniform and consistent policy across the country would  prove to be troublesome for College administrators.  In his view, "ethical standards for medical practice should be very similar across Canada, and that it should be possible for Canadian Colleges to adopt a common approach." (Appendix "B", BV.)

Response to the argument

VI.3.8    Appeals to authority

VI.3.8.a    An appeal to authority may be appropriate within a defined community in which the authority is recognized. Within Canada, a point of law may be settled by citing a ruling of the Supreme Court of Canada, for example. However, an appeal to authority on points of morality or ethics is not appropriate within a pluralist society composed of people and groups with different and sometimes opposing concepts of good and evil.

VI.3.8.b    In this situation it is customary in Canada to adopt the advice of Madame Justice Bertha Wilson of the Supreme Court of Canada in R v. Morgentaler with respect to 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," and that the state should not endorse and enforce "one conscientiously-held view at the expense of another." (VII.12)

VI.3.8.c    With respect to Arthur Schafer's opinion, other ethicists disagree with him. Mr. Salte did not explain why he chose to ignore the opinions of ethicists who disagree with Mr. Schafer, nor did he explain why the College should endorse and enforce Mr. Schafer's view at the expense of those who disagree with him.

VI.3.8.d    The same thing can be said with respect to the opinions of faculty members at the University of Wisconsin. In addition, the author of the paper provided by Mr. Salte cautioned that the research cannot be used in the way Mr. Salte would have it used. (Appendix "B", BVI.5). 

VI.3.9    Appeal to consensus

VI.3.9.a    Concerning the "consensus" of participants at the meetings described by Mr. Salte, it is not difficult to arrive at a consensus concerning a policy by excluding from discussion anyone likely to disagree with it. 

VI.3.9.b    The first of these meetings appears to have been organized and controlled by the CRG activists who meant to have their Model Conscientious Objection Policy aadopted by the Colleges. Invitations were probably sent to those known to be supportive or MCOP or those thought likely to agree with it, while those known to disagree or likely to disagree with it being deliberately excluded.(Appendix "B", BII.).

VI.3.9.c    The second meeting was limited to officials from different Colleges (Appendix "B", BIII.).  Groups likely to be opposed to a policy of mandatory referral were not present, even if the meeting was not deliberately structured to exclude them.

VI.3.9.d    Such a contrived "consensus" is certainly useful for the purpose of advancing an ideological position at the expense of the conscientiously-held views of others, and for subordinating them to the conception of the good life favoured by CRG activists and College administrators. However, a contrived and partisan consensus is not capable of justifying the suppression of the fundamental freedoms.

VI.3.10    Administrative convenience

VI.3.10.a    While a uniform policy would obviously be much more convenient for administrators, Mr. Salte did not explain why either the CRG's Model Conscientious Objection Policy or its virtual clone, Conscientious Refusal, should be that policy. 

VI.3.10.b    Neither Mr. Salte nor the committee offered a single ethical argument to support the claim that Conscientious Refusal should be an 'ethical standard for medical practice.'

Summary

VI.3.11    Neither Mr. Salte nor the committee argued that Conscientious Refusal is necessary to ensure that medical practice in the province is safe, competent, ethical and is necessary to ensure that medical practice in the province is safe, competent, ethical and safeguards the health of patients.

VI.3.12    Mr. Salte attempted to justify Conscientious Refusal by appealing to the authority of opinion of half of a Wisconsin University faculty and the opinion of a single ethicist. However, the former approach is invalid for empirical reasons, and the latter is unsatisfactory in a pluralist society.

VI.3.13    Mr. Salte's appeal to a contrived and partisan "consensus" is an unacceptable form of manipulation, not an adequate justification of the policy.

VI.3.14    Even if it is administratively convenient for Canadian regulators to adopt a common ethical standard for medical practice, neither Mr. Salte nor the committee offered a single argument to prove that Conscientious Refusal should be that standard.

VI.4    Is the policy justified by the principles included in the policy?

VI.4.1    A number of the principles set out in Conscientious Refusal might, at first glance, seem to justify the conclusion that physicians should be made to do what they believe to be wrong. 

VI.4.2    "The College of Physicians and Surgeons has an obligation to serve and protect the public interest."

VI.4.2.a    This obligation applies generally to every government or state institution.

VI.4.2.b    The College serves and protects the public interest by attending to its statutory responsibilities.  The responsibilities are described on the College website:

• Licensing properly qualified medical practitioners;
• Developing and ensuring the standards of practice in all fields of medicine;
• Investigating and disciplining of all doctors whose standards of medical care, ethical or professional conduct are questioned.

VI.4.2.c    Since the assertion of "an obligation to serve and protect the public interest" applies to every government or state institution, and the College fulfils that obligation by properly discharging its statutory responsibilities, the reference to this principle either serves no purpose, or has been included to provide rhetorical pretext for the coercive elements found in the policy.

VI.4.2.d    In any case, the public interest is neither served nor protected by the unjustified suppression of freedom of conscience and religion.

VI.4.3    "The Canadian medical profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services."

VI.4.3.a    Even if undisputed, it does not follow from this principle that every physician is obliged to provide or facilitate access to every legal, publicly-funded health service.

VI.4.4    "Physicians have an obligation not to interfere with or obstruct a patient's right to access legally permissible and publicly-funded health services."

VI.4.4.a   Granted that physicians must not interfere with or obstruct a patient's access to legally permissible services, it does not follow that a physician is always legally or ethically obliged to facilitate access. 

VI.4.4.b    Moreover, the unwillingness of a physician to provide a service or facilitate access to it does not constitute obstruction or interference.  Obstruction or interference both require some positive act.  This point was made recently in the submission of the Justice Centre for Constitutional Freedoms to the College of Physicians and Surgeons of Ontario:

To obstruct or hinder a person connotes an active intention.If a physician explains to a patient that the physician has a moral, ethical, or religious objection to a treatment or procedure, that physician is not "impeding" that patient's access to such medical services. Neither are those physicians who proactively take steps to notify potential patients that they do not provide certain controversial services.  There is no active intention to obstruct or hinder the patient from receiving such care, just an explanation that the physician cannot participate in providing it.

As an analogous example, if a customer were to go to a butcher to buy some pork chops and discover that the butcher is a devout Muslim or Jew who refuses to sell pork, and even refuses to direct customers to other butchers offering pork, that butcher is not "impeding" the potential customer's access to pork. Rather, the butcher is merely refusing to participate or facilitate the potential customer’s purchase of pork.8

VI.4.5    "Physicians have an obligation not to abandon their patients."

VI.4.5.a    Writing in the New England Journal of Medicine, two euthanasia advocates characterized refusal of physicians to provide euthanasia as patient abandonment, a violation of medical ethics.9

VI.4.5.b     Testifying during the trial in Carter v. Canada as an expert witness in favour of legalization of physician assisted suicide, Professor Margaret Battin also linked refusal to provide such service as patient abandonment.10 Professor Jocelyn Downie of Dalhousie University helped the lawyers who called Professor Battin to testify prepare their expert witnesses for the trial.11

VI.4.5.c     Professor Downie was one of the ghost writers of Conscientious Refusal.  She and fellow ghost writer Jaquelyn Shaw claim that a physician who "terminates a relationship without referral in a conscientious conflict" may be guilty of "patient abandonment."12

VI.4.5.d     However, many will dispute the claim that a physician who refuses to kill a patient in the circumstances contemplated by the Supreme Court of Canada is guilty of "patient abandonment." A patient who asks a physician for assisted suicide or euthanasia is not abandoned because the physician offers effective remedial treatments or palliative care instead of a lethal injection.

VI.4.5.e      Similarly, a physician does not abandon a patient because he offers treatment or care that the patient does not want.  A pregnant woman who comes to a physician seeking an abortion is not abandoned because the physician declines to provide an abortion and offers obstetrical care.  A patient who asks a physician for birth control is not abandoned because the physician offers assistance with Natural Family Planning rather than a prescription for birth control. 

VI.4.5.f     To characterize such situations as examples of "patient abandonment" reflects wordsmithing that deforms accepted principles in order to use them for a purpose for which they were never intended: to convince physicians that they have an ethical and legal obligation to kill patients or find someone who will, to justify the coercion of those who resist, and to provide an excuse to suppress freedom of conscience and religion in the medical profession.

VI.4.5.g    Moving from ethics to law, in 2004, two Canadian academics, Professors Rebecca Cook and Bernard Dickens, claimed that failing to refer for abortion constitutes "negligence close to abandonment." However, their claim was unsupported by their own legal references (Appendix "G").

VI.4.6     ". . . legally permissible and publicly-funded . . ."

VI.4.6.a    Neither individual physicians nor the medical profession as a whole have an obligation to ensure that people have access to illegal health services.  Any actual obligation can refer only to legal services.

VI.4.6.b    Many kinds of elective surgery are not publicly funded.  Diabetic supplies like insulin needles or pumps may not be publicly funded or may be publicly funded only after payment of an annual deductible.  The fact that a health service is or is not "publicly-funded" has nothing to do with whether or not individual physicians or the medical profession as a whole have an obligation to ensure that people have access to it.

VI.4.6.c   Physicians may not interfere with or obstruct a patient's right to access legally permissible services whether or not they are health services and whether or not they are publicly funded.

VI.4.6.d    "Public funding" provides a benefit for a patient, but it confers no privileged status on a procedure, nor does "public funding" establish definitively that a procedure is morally or ethically acceptable, any more than "public funding" can establish that a war is justified.

VI.4.6.e    The descriptors "legally permissible" and "publicly-funded" serve no purpose in this document apart from providing a rhetorical pretext for the coercive elements found in the policy.

VI.4.7    ". . . health services. . . health . . . well-being. . ."

VI.4.7.a    Following the legalization of abortion it quickly became obvious that the meaning of "health" was so elastic as to be meaningless for policy purposes unless more specifically defined; "well-being" is more elastic still. 

VI.4.7.b    In his submission to the Supreme Court of Canada in Carter v. Canada, counsel for the Canadian Medical Association explained that the concept of "the best interests of the patient" can be taken to mean that physicians should sometimes help patients commit suicide or kill them, on the one hand, or, on the other, that they should never do so.  He told the Court that the medical profession is divided between two positions, "each defensible on the basis of established medical ethical considerations and compassion for the patient."13

VI.4.7.c    The problem described by the CMA's lawyer arises because the question of whether or not a service is a health service or a procedure is a medical procedure is determined by an underlying philosophy.  Only to the extent that the philosophy is actually shared can there be agreement on that point.  It is not determined by the legality of the service or the procedure, nor is it determined by whether or not the service is publicly-funded. 

VI.4.7.d    For example, the fact that the Supreme Court of Canada has decided that physicians should be allowed to kill patients under certain circumstances does not oblige all physicians to accept the view that killing patients is a "health service" or "medical procedure," any more than they are obliged to accept the legal fiction that an infant is not a human person until it has completely proceeded, alive, from the body of its mother.  It is precisely for this reason that counsel for the CMA told the Court that "the law should offer protection to those physicians who choose to participate in physician assisted death if it is legalized, and those who do not."14

Summary

VI.4.8    Consistent with the ultimate origin of the policy with the Conscience Research Group, the principles set out and terminology used in Conscientious Refusal are apparently intended to convince physicians that they have an ethical and legal obligation to do what they believe to be wrong, to justify the coercion of those who resist, and to provide an excuse to suppress freedom of conscience and religion in the medical profession. 

VI.4.9    However, the principles cannot be applied for this purpose unless they are tendentiously interpreted in accordance with the views of the Conscience Research Group and alternative philosophical or ethical viewpoints are ignored or disallowed.

VI.4.10    Neither Mr. Salte nor the committee has demonstrated that alternative philosophical or ethical viewpoints should be ignored or disallowed.

VI.4.11    At this point one returns again to the words of Madame Justice Bertha Wilson in R v. Morgentaler.  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," and that the state should not endorse and enforce "one conscientiously-held view at the expense of another."(VII.12)

VI.5    Is the policy a compromise?

VI.5.1    Interviewed after the draft policy was made public, Mr. Salte offered a further justification for Conscientious Refusal:

So there is a broad range of beliefs out there, there's a broad range of perspectives out there, and what the draft policy talks about is, in fact, a compromise between the extreme position, which would be that physicians are compelled to provide this service, on the one side, and the other extreme position which is physicians can simply refuse to discuss with their patients what is going to become a legal procedure. (Appendix "C", CV.4)

VI.5.2    This is a false characterization of the opposite poles of the issue. Against the position that physicians are obliged to do something they believe to be wrong is the opposite position that they are not obliged to do so. Merely talking about killing the patient is a different matter.

VI.5.3    However, for present purposes, consider the claim that forcing an objecting physician to help to arrange the killing of a patient by someone else is a compromise between two polar opposites: on the one hand, that physicians are morally obliged to kill patients in the circumstances defined by the Supreme Court, or, on the other, that physicians are not morally obliged to kill patients in those circumstances.

VI.5.4    To claim that killing patients in accordance with the Supreme Court ruling involves no moral judgement is absurd. Clearly, the (unspoken) premise is that killing patients in those circumstances is morally acceptable. If it is morally acceptable to kill them, then it must be morally acceptable to assist with the killing - by finding someone else to do it, for example. This is precisely the reasoning used by the trial court judge in Carter. Beginning with the premise that suicide can be morally acceptable, she agreed that it follows that assisting with suicide can be morally acceptable.15

VI.5.5    However, objecting physicians typically reject the premise that killing patients is morally acceptable even in the circumstances defined by the Supreme Court. They insist, to the contrary, that it is morally unacceptable. And, from the premise that it is morally unacceptable, it follows that it must be morally unacceptable to assist with it or arrange for it. This is entirely consistent with the reasoning of the trial judge in Carter and with widespread understanding of morally significant participation.

VI.5.6    To insist, despite this, that objecting physicians are obliged to help to arrange the killing of a patient according to the Carter protocol is not neutral with respect to the morality of killing. On the contrary: the unspoken premise that lies behind such a demand is that killing patients according to the Carter protocol is morally acceptable and that anyone who refuses to accept that premise is mistaken. To take the next step - to order an objecting physician to help to arrange a killing - is not a compromise between two opposite moral views about killing patients. It is a demand to conform to the opposite moral view.

VI.5.7    While the explanation offered here uses the examples of physician assisted suicide and euthanasia, it applies equally to other morally contested procedures, and it applies equally to disputes about the content of professional obligations.

VI.5.8    To describe this demand for submission as a "compromise" is, as Professor Jay Budziszewski says, "bad faith authoritarianism . . . a dishonest way of advancing a moral view by pretending to have no moral view."16

VII.    Discussion

VII.1    One of the disturbing aspects of the story of the origin and development of Conscientious Refusal is what appears to be a pattern of concealment, selective disclosure, and false or misleading statements that all serve the purpose of supporting the policy.

VII.2    Further, one also finds explicit statements that the subject is controversial, which obviously imply the existence of contrary opinions. However, at no point does one find even a half-hearted effort to consider those opinions.  For the purposes of policy development by College officials, contrary views either do not exist or are not worth examining. 

VII.3    Finally, the documents considered in this submission disclosed that, since some time in 2013, officials of Colleges of Physicians in a number of provinces have been making plans behind closed doors to suppress freedom of conscience in the medical profession by enacting guidelines to force physicians to do what they believe to be wrong - even if that means participating in homicide or suicide. Saskatchewan physicians became aware of this only after the College Council had approved Conscientious Refusal in principle.

VII.4    It is thus appropriate to offer here a number of principles that have been ignored by those who urged College Council to approve Conscientious Refusal, and by the ghost writers in the Conscience Research Group who provided the original text for the policy.

VII.5    Medicine is a moral enterprise.

VII.5.1  The practice of medicine is an inescapably moral enterprise precisely because physicians are always seeking to do some kind of good and avoid some kind of evil for their patients.17 However, the moral aspect of practice as it relates to the conduct and moral responsibility of a physician is usually implicit, not explicit. It is normally eclipsed by the needs of the patient and exigencies of practice. But it is never absent; every decision concerning treatment is a moral decision, whether or not the physician specifically adverts to that fact.

VII.5.2  This point is frequently overlooked when a physician, for reasons of conscience, declines to participate in or provide a service or procedure that is routinely provided by his colleagues. They may be disturbed because they assume that, in making a moral decision about treatment, he has done something unusual, even improper. Seeing nothing wrong with the procedure, they see no moral judgement involved in providing it. In their view, the objector has brought morality into a situation where it doesn't belong, and, worse, it is his morality.

VII.5.3  In point of fact, the moral issue was there all along, but they didn't notice it because they have been unreflectively doing what they were taught to do in medical school and residency, and what society expects them to do. Nonetheless, in deciding to provide the procedure they also implicitly concede its goodness; they would not provide it if they did not think it was a good thing to do. What unsettles them is really not that the objector has taken a moral position on the issue, but that he has made an explicit moral judgement that differs from their implicit one.

VII.5.4  Hence, the demand that physicians must not be allowed to act upon beliefs is unacceptable because it is impossible; one cannot act morally without reference to beliefs, and cannot practise medicine without reference to beliefs. Relevant here is a comment by Professor Margaret Somerville. "In ethics," she writes,"impossible goals are not neutral; they cause harm."18

VII.5.5    Once medicine is understood to be a moral enterprise, it becomes easier to understand why it is a mistake to think that moral or ethical views are unwelcome intruders upon the physician-patient relationship. Morality and ethics are actually intrinsic to it. Of course, some moral or ethical views may be erroneous, but that is a different matter that must be addressed by explaining why they are erroneous. It will not do to pretend, for example, that the claim that best medical practice in some circumstances means killing a patient does not involve at least implicit moral or ethical judgements.

VII.5.6    It is not possible here to adequately address the issues raised by Conscientious Refusal in relation to the practice of medicine, particularly since the policy is fixated on the provision of "legally permissible publicly-funded services" to the complete exclusion of any reference to the philosophy of medicine or ethical medical practice. It does not seem to recognize that providing palliative care is not functionally or morally equivalent to providing automotive repairs covered by Saskatchewan Government Insurance.

VII.6    Consider first the well being of the patient.

VII.6.1  Consistent with the practice of medicine understood as a moral enterprise, a physician first considers the well-being of the patient.19 What constitutes or contributes to the "well-being" of a patient is largely determined by a competent patient, not by a physician, though a physician may well contribute to the patient's decision. However, it does not follow that a physician is always obliged to agree with the patient's decision or to give effect to it. What happens in the case of such disagreements is largely dependent upon patient and physician concerned and their respective evaluations of what is at stake. More relevant here is the obligation of the physician to offer the patient his best medical judgement about a recommended course of treatment or action, and, in so doing, select treatments that avoid or minimize health risks or adverse side effects.

VII.6.2  Sound medical judgement begins with and remains focussed on the patient and is exercised respectfully. It must be informed by correct science, avoiding or minimizing foreseeable risks or harm. It must seek a reasonably effective response to the needs of the patient, the anticipated benefits of which outweigh potential risks or harms. Medical judgement requires the reasonable exercise of discretion, which is shaped and refined by clinical wisdom born of experience. More could be added, but these elements are essential.

VII.6.3  Physicians are expected to provide patients with accurate information about all legal options available to them, the effectiveness of the methods, adverse effects or risks associated with each, benefits associated with each, and other information that someone in the position of a patient would reasonably want to know. In some cases the physician might have to provide a great deal of information; in others, it may simply be a matter of filling in some gaps in what the patient knows.20 In all cases, the physician must take care to present the information in a form comprehensible to the patient.21

VII.6.4  The physician must disclose whether or not he has religious, ethical or other conscientious convictions that generally preclude him from providing some services or treatments, even if medical judgement is central to his practice.22 The reason for this is that the patient is entitled to be apprised of non-medical factors that may influence a physician's medical judgement and recommendations. The patient is also entitled to know whether or not the physician's medical evaluation of the treatment in question is consistent with the general view of the medical profession.23

VII.6.5  The physician should invite questions from the patient at different stages in the consultation to ensure that he has been correctly understood.24 The goal is to ensure that the patient has sufficient information and understanding to make an informed decision about what kind of treatment she will accept. With respect to any reference to his conscientious convictions, unless the patient questions him, asks for further explanation, or otherwise indicates that she does not understand his position, the physician need not and probably should not expand upon the basis for his own position. To do so would likely invite the accusation that he is "preaching."

VII.6.6    Patient-centred medical practice is directed to ensuring good medical care, but good medical care is not provided by automatons. Medical schools do not manufacture made-to-order products that perform according to factory default settings, or finely machined cogs that keep health care delivery apparatus running smoothly. Medicine is a moral enterprise, morality is a human enterprise, and physicians, no less than patients, are moral agents. Conscientious Refusal was written from a very different perspective, and it has not been shown to be a morally or ethically superior perspective.

VII.7    Morality is a human enterprise.

VII.7.1  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. This applies no less to "secular" ethics than to religious ethics. A secular ethic may be independent of religion,25 but it is not faith-free, nor is it beyond the influence of faith. On the contrary: a secular ethic, like any ethic, is faith-based. 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.7.2  That everyone is a believer reflects the fact that the practice of morality is a human enterprise,26 but it is not a scientific enterprise. The classic ethical question, "How ought I to live?" is not a scientific question and cannot be answered by any of the disciplines of natural science, though natural science can provide raw material needed for adequate answers.

VII.7.3  Answers to the question, "How ought I to live?" reflect two fundamental moral norms; do good, avoid evil. These basics have traditionally been undisputed; the disputes begin with identifying or defining good and evil and what constitutes "doing" and "avoiding." Such explorations are the province of philosophy, ethics, theology and religion. Internationally, religion continues to be the principal means by which concepts of good and evil and right and wrong conduct are sustained and transmitted.

VII.7.4  Nonetheless, since the practice of morality is a human enterprise, reflections about morality and the development and transmission of ideas about right and wrong also occurs within culture and society outside the framework of identifiable academic disciplines and religions. In consequence, the secular public square is populated by people with any number of moral viewpoints, some religious, some not: some tied to particular philosophical or ethical systems, some not: but all of them believers. There is no reason to deny the freedom to act upon religious belief because it is religious: no reason, that is, apart from anti-religious bigotry.

VII.7.5    Further, since morality is a human enterprise, moral judgement is an essential activity of every human person, moral judgement necessarily involves some kind of individual or personal conviction, and maintaining one's personal moral integrity is the aspiration of anyone who wishes to live rightly.  Thus, beliefs are "personal," in the sense that one personally accepts them and is committed to them.

VII.7.6    However, this does not mean that they are parochial, insignificant or erroneous. Christian, Jewish and Muslim beliefs, for example, are shared by hundreds of millions of people. They "personally" adhere to their beliefs, just as non-religious believers "personally" adhere to their non-religious beliefs. In neither case does the fact of this "personal" commitment provide grounds to set beliefs aside. Thus, it is important to recognize that pejorative or suspicious references to "personal" beliefs or "personal" values frequently reflect underlying and perhaps unexamined prejudice against them. 

VII.7.7    Conscientious Refusal was written by believers: by people who believe that whatever is "legally permissible and publicly-funded" is morally acceptable, who believe that those who think differently are mistaken, and who believe that others should be compelled to conform to their faith in the moral infallibility of the law and ministers of finance. The policy is profoundly disrespectful of the moral agency of physicians.

VII.8   A secular public square includes religious belief.

VII.8.1    It is for this reason that the Supreme Court of Canada has recognized that, in Canadian law, "secular" must be understood to include religious belief. In his paper, Seeing Through the Secular Illusion,27 Dr. Iain Benson emphasizes this by referring to an explanation supported by the full bench of the Court:

In my view, Saunders J. below erred in her assumption that 'secular' effectively meant 'non-religious'. This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. I note that the preamble to the Charter itself establishes that '... Canada is founded upon principles that recognize the supremacy of God and the rule of law'. According to the reasoning espoused by Saunders J., if one's moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has 'belief' or 'faith' in something, be it atheistic, agnostic or religious. To construe the 'secular' as the realm of the 'unbelief' is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.28

VII.8.2    Thus, the Supreme Court of Canada has acknowledged that secularists, atheists and agnostics are believers, no less than Christians, Muslims, Jews and persons of other faiths. Neither a secular state nor a secular health care system (tax-paid or not) must be purged of the expression of religious belief. Whether or not they are state employees in law or as a matter of public policy, physicians may act upon religious beliefs when practising medicine. The Court has insisted that rational democratic pluralism must make room for all of them.

VII.8.3    This undercuts the reasoning sometimes offered by those who would suppress freedom of conscience and religion in the medical profession. Identifying physicians as "providers of secular public services"(emphasis added),29 they erroneously presume that what is "secular" excludes religious belief.  The public perpetuation of this error contributes significantly to anti-religious sentiments and a climate of religious intolerance.

VII.8.4    Further, the approach taken by the Supreme Court of Canada on this issue contradicts the position taken by those who argue that "moral beliefs" are not protected: that only specifically religious beliefs and practices are protected by law.30 This reasoning would  place atheists and agnostics "at a public disadvantage or disqualification" vis-à-vis religious believers, surely not an outcome consistent with the thinking of the Supreme Court.

VII.8.5    While the Supreme Court of Canada has recognized that religious believers and religious communities are part of the warp and woof of the Canadian social fabric, Conscientious Refusal is written as if this is inconsequential, inasmuch as it demands that physicians must participate in morally significant ways in procedures known to be contrary to the teaching of major religious groups. Thus, the policy is inimical to the presence of members of those groups in medical practice.

VII.9    Avoid authoritarian solutions.

VII.9.1  Making room in the public square for people motivated by different and sometimes opposing beliefs can lead to conflict, as the present consultation demonstrates. The Supreme Court of Canada has warned that to single out and exclude religious belief in order to prevent or minimize such conflict would "distort liberal principles in an illiberal fashion."31

VII.9.2  It is also dangerous. It overlooks the possibility that some secularists - like some religious believers - can be uncritical and narrowly dogmatic in the development of their ethical thinking, and intolerant of anyone who disagrees with them. They might see them as heretics who must be driven from the professions, from the public square, perhaps from the country: sent to live across the sea with their "own kind."  University of Victoria law professor Mary Anne Waldron provides a reminder and a warning:

Conflict in belief is an endemic part of human society and likely always will be. What has changed, I think, is the resurrection of the idea that we can and should compel belief through legal and administrative processes, or, if not compel the belief itself, at least force conformity. Unfortunately, that begins the cycle of repression that, if we are to maintain a democracy, we must break.32

VII.9.3  On this point, it is essential to note that a secular ethic is not morally neutral.33 The claim that a secular ethic is morally neutral - or that one can practise medicine in a morally "neutral" fashion- is not merely fiction. It is another example of "bad faith authoritarianism” identified by Professor J. Budziszewski.16

VII.9.4    Conscientious Refusal illustrates another of the most common examples of "bad faith authoritarianism": the pretence that referral is an acceptable compromise that balances the respective "interests" of physicians and patients. While that may be the case for many physicians in many situations, it clearly is not the case when it is understood that referral or other forms of facilitation make a physician complicit in wrongdoing.34

VII.10    There is no duty to do what is believed to be wrong.

VII.10.1  If it is legitimate to compel religious believers to do what they believe to be wrong, then it is equally legitimate to compel non-religious believers to do what they think is wrong. It would, in principle, establish a duty to do what is believed to be wrong for everyone.

VII.10.2  For Andrei Marmor, "a duty to do what is wrong is surely an oxymoron,"35 and most people would agree, as did Dr. John Williams, then Director of Ethics for the Canadian Medical Association. Speaking in 2002 of physicians who decline to provide or refer for contraceptives for religious reasons, he said, "[They're] under no obligation to do something that they feel is wrong."36

VII.10.3  When discussion about difficulties associated with the exercise of freedom of conscience in health care is repeatedly characterized as "the problem of conscientious objection,"37 it becomes clear that the underlying premise is that people and institutions ought to do what they believe to be wrong, and that refusal to do what one believes to be wrong requires special justification. This is exactly the opposite of what one would expect. Most people believe that we should not do what we believe to be wrong, and that refusing to do what we believe to be wrong is the norm. It is wrongdoing that needs special justification or excuse, not refusing to do wrong.

VII.10.4  The inversion is troubling, since "a duty to do what is wrong" is being advanced by those who support the "war on terror." They argue that there is, indeed, a duty to do what is wrong, and that this includes a duty to kill non-combatants and to torture terrorist suspects.38 The claim is sharply contested,39 but it does indicate how far a duty to do what is wrong might be pushed. In Quebec, it is now being pushed as far as requiring physicians to participate in killing patients, even if they believe it is wrong: even if they believe that it is first degree murder.40

VII.10.5  This, perhaps, was what was troubling a member of the Council of the College of Physicians of Ontario when, in September, 2008, the Council was considering the final draft of Physicians and the Human Rights Code. He drew his colleagues' attention to a chilling New England Journal of Medicine article by Holocaust survivor, Elie Wiesel: "Without conscience."41 It was about the crucial role played by German physicians in supporting Nazi horrors. "How can we explain their betrayal?" Wiesel asked. "What gagged their conscience? What happened to their humanity?"42

VII.10. 6    This reminder is a warning that the community must be protected against the temptation to give credence to the dangerous idea that is advanced by Conscientious Refusal: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong - even gravely wrong - and punish them if they refuse.

VII.10. 7    Finally, Conscientious Refusal is incoherent because it purports to include a duty to do what one believes to be wrong in a code of ethics or ethical guidelines, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing.

VII.11    Forcing someone to do wrong is violation, not limitation.

VII.11.1  Attempts to suppress freedom of conscience and religion in the medical profession are often defended using a statement of the Supreme Court of Canada: "the freedom to hold beliefs is broader than the freedom to act on them."43

VII.11.2  The statement is certainly correct, and precedents can be cited for applying it.  Oliver Cromwell applied the distinction to justify his suppression of the practice of Catholicism in Ireland.44 However, it is doubtful that the Supreme Court of Canada intended its comment to be put to such use in a liberal democracy.

VII.11.3  The mantra, "the freedom to hold beliefs is broader than the freedom to act on them" is not wrong, but it is inadequate. It is simply not responsive to many of the questions about the exercise of freedom of conscience that arise in a society characterized by a plurality of moral and political viewpoints and conflicting demands. More refined distinctions are required. One of them is the distinction between perfective and preservative freedom of conscience, which reflects the two ways in which freedom of conscience is exercised: by pursuing apparent goods and avoiding apparent evils.45

VII.11.4  It is generally agreed that the state may limit the exercise of perfective freedom of conscience if it is objectively harmful, or if the limitation serves the common good. Although there may be disagreement about how to apply these principles, and restrictions may go too far, no polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected.

VII.11.5  If the state can legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong. There is a significant difference between preventing someone from doing the good that he wishes to do and forcing him to do the evil that he abhors.

VII.11.6  We have noted the danger inherent in the notion of a "duty to do what is wrong." Here we add that, as a general rule, it is fundamentally unjust and offensive to suppress preservative freedom of conscience by forcing people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

VII.11.7  This does not mean that no limit can ever be placed on preservative freedom of conscience. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

VII.11.8    What is proposed by Conscientious Refusal is not a justified limitation of fundamental freedoms, but a serious violation of human dignity that remains unjustified by any evidence or argument advanced to support it.

VII.12    Accommodate different conceptions of "the good life."

VII.12.1   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."46 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.47

VII.12.2   "Everyone" includes every physician. 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."48  This statement was affirmed unanimously in 1991 by a panel of five judges, and by the full bench of the Court in1996.49

VII.12.3   Wilson approved the principle that 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'."50

VII.12.4    Freedom of conscience was also mentioned by Justices Beetz and Estey in Morgentaler when considering the appointment of therapeutic abortion committees. 

Given that therapeutic abortions can only be performed in eligible hospitals and that the committee certifying the abortion must come from that hospital, this effectively contributes to the inaccessibility of the treatment. Nothing in the Criminal Code obliges the board of an eligible hospital to appoint therapeutic abortion committees. Indeed, a board is entitled to refuse to appoint a therapeutic abortion committee in a hospital that would otherwise qualify to perform abortions and boards often do so in Canada.

Given that the decision to appoint a committee is, in part, one of conscience and, in some cases, one which affects religious beliefs, a law cannot force a board to appoint a committee any more than it could force a physician to perform an abortion. The defect in the law is not that it does not force boards to appoint committees, but that it grants exclusive authority to those boards to make such appointments. (Emphasis added)51

VII.12.5    Most recently, in Carter v. Canada, the full bench of the Court, affirming the words of Mr. Justice Beetz, stated, "a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief." 52   

VII.12.6    The plan to suppress freedom of conscience and drive dissenting physicians from the medical profession demonstrates that Conscientious Refusal clashes seriously with the approach taken in Morgentaler and affirmed in Carter. Public policy must make room for both hospitals and physicians whose "a concept of the good life" precludes their participation in abortion, euthanasia, assisted suicide or other morally contested procedures for reasons of conscience or religion.

VIII.    Conclusions

VIII.1    Conscientious Refusal requires all physicians who object to a procedure for reasons of conscience to facilitate the procedure by referring patients to a colleague who will provide it, even if it is homicide or suicide.  This is widely recognized as a form of morally significant participation. Moreover, since this is known to be contrary to the teaching of major religious groups, the policy is inimical to the presence of members of those groups in medical practice. Thus, the policy adversely affects freedom of conscience and religion.

VIII.2    No evidence was provided to justify the policy. No argument was offered to demonstrate that Conscientious Refusal is necessary to ensure that medical practice in the province is safe, competent, ethical, or to safeguard the health of patients. None of the arguments provided to Council justify the policy, nor do the principles included in the text.

VIII.3    Conscientious Refusal fails to recognize that the practice of medicine is a moral enterprise, morality is a human enterprise, and physicians, no less than patients, are moral agents.

VIII.4    The original text virtually copied by Conscientious Refusal was written by believers: by people who believe that whatever is "legally permissible and publicly-funded" is morally acceptable- including euthanasia, assisted suicide and abortion. It is an assertion of those beliefs and an authoritarian attempt to compel others to conform to them. It is a partisan document that is profoundly disrespectful of the moral agency of physicians, not a compromise.

VIII.5    Conscientious Refusal advances the dangerous idea that a learned or privileged class or profession or state institutions can legitimately compel people to do what they believe to be wrong - even gravely wrong - and punish them if they refuse. This is not a limitation of fundamental freedoms, but a serious violation of human dignity that remains unjustified by any evidence or argument advanced to support it. It is also incoherent, because it purports to include a duty to do what one believes to be wrong in a code of ethics or ethical guidelines, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing.

VIII.6    The Associate Registrar has made it clear that those who refuse to do what the policy demands will be disciplined by the College or forced out of the medical profession. This clashes seriously with the approach taken by the Supreme Court of Canada, which has affirmed that public policy must make room for physicians whose "concept of the good life" precludes their participation in abortion, euthanasia, assisted suicide or other morally contested procedures.

VIII.7    The burden of proof was on the Associate Registrar and the appointed committee to prove beyond doubt that Conscientious Refusal is justified and that no less authoritarian alternatives are available.  They failed to discharge that burden; neither has College Council discharged it. The policy should be withdrawn.

---

Notes

1.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services, p. 3.

2.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 4.

3.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 10-13. (Physicians and the Ontario Human Rights Code)

4.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 14. (Moral or Religious Beliefs Affecting Medical Care)

5.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 15.(Members Moral or Religious Beliefs Not to Affect Medical Care)

6.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 16-18. (Guideline: Unplanned Pregnancy)

7.  Document 200/14, College of Physicians and Surgeons of Saskatchewan, Memo from Bryan Salte to Council dated 31 July, 2014 Re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services,  p. 2.

8.  In Defence of Charter Freedoms: A legal analysis of the constitutionality of the draft policy "Professional Obligations and Human Rights." & Justice Centre for Constitutional Freedoms, February, 2015, p. 6 (Accessed 2015-03-02)

9.  Angell M., Lowenstein E. Letter re: Redefining Physicians' Role in Assisted Dying.  N Engl J Med 2013; 368:485-486 January 31, 2013 DOI: 10.1056/NEJMc1209798 (Accessed 2015-03-03)

10.  Carter v. Canada (Attorney General) 2012 BCSC 886, para. 239  (Accessed 2015-02-28)

11.  Carter v. Canada (Attorney General) 2012 BCSC 886, para. 124 (Accessed 2015-02-28)

12.  Shaw, J. and Downie, J. "Welcome to the Wild, Wild North: Conscientious Objection Policies Governing Canada's Medical, Nursing, Pharmacy, and Dental Professions." Bioethics. doi: 10.1111/bioe.12057

13.  Re: Joint intervention in Carter v. Canada: Selections from oral submissions.  Supreme Court of Canada, 15 October, 2014.  Harry Underwood (Counsel for the Canadian Medical Association)[227:29/491:20] to [229:29/491:20]

14.  Re: Joint intervention in Carter v. Canada: Selections from oral submissions.  Supreme Court of Canada, 15 October, 2014.  Harry Underwood (Counsel for the Canadian Medical Association)[229:29/491:20]

15.   Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia. (Hereinafter "Carter v. Canada") para. 339 (Accessed 2014-11-24) The judge uses the term "ethical," not "moral," and more frequently employs the former, but she treats them as synonyms when addressing the question, "Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?" (para. 340-358) Moreover, witnesses on both sides do not typically distinguish between ethical and moral issues. See, for example, Dr. Shoichet (plaintiffs) at para. 75, Prof. Sumner (plaintiffs) at para. 237, Dr. Bereza (defendants) at para. 248, Dr. Preston (plaintiffs) at para. 262. The judge defines ethics as "a discipline consisting of rational inquiry into questions of right and wrong" and frames the question accordingly: " whether it is right, or wrong, to assist persons who request assistance in ending their lives and, if it is right to do so, in what circumstances." Carter v. Canada, para. 164. Most would see in this passage no way to distinguish between ethics and moral philosophy.

16.  "The question of neutrality has been profoundly obscured by the mistake of confusing neutrality with objectivity... neutrality and objectivity are not the same... objectivity is possible but neutrality is not. To be neutral, if that were possible, would be to have no presuppositions whatsoever. To be objective is to have certain presuppositions, along with the manners that allow us to keep faith with them." Budziszewski J., "Handling Issues of Conscience." The Newman Rambler, Vol. 3, No. 2, Spring/Summer 1999, P. 4.

17.  Maddock J.W. "Humanizing health care services. The practice of medicine as a moral enterprise." J Natl Med Assoc. 1973 November; 65(6): 501–passim. PMCID: PMC2609038  (Accessed 2014-02-18)

18.  Somerville M. "Why are they throwing brickbats at God?" MercatorNet, 1 June, 2007 (Accessed 2014-08-03)

19.  Canadian Medical Association, Code of Ethics (2004): Fundamental Responsibilities No. 1. (Accessed 2014-02-15)

20.  Canadian Medical Association Code of Ethics (2004): "21. Provide your patients with the information they need to make informed decisions about their medical care, and answer their questions to the best of your ability." (Accessed 2014-02-22)

21.  Murray B. "Informed Consent: What Must a Physician Disclose to a Patient?" American Medical Association Journal of Ethics, Virtual Mentor. July 2012, Volume 14, Number 7: 563-566. (Accessed 2014-02-22)

22.  Canadian Medical Association Code of Ethics (2004): "12. Inform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants." (Accessed 2014-02-22)

23.  Canadian Medical Association Code of Ethics (2004): "45. Recognize a responsibility to give generally held opinions of the profession when interpreting scientific knowledge to the public; when presenting an opinion that is contrary to the generally held opinion of the profession, so indicate." (Accessed 2014-02-22)

24.  Canadian Medical Association Code of Ethics (2004): "22. Make every reasonable effort to communicate with your patients in such a way that information exchanged is understood." (Accessed 2014-02-22)

25.  Singer P. Practical Ethics (2nd Ed.). Cambridge: Cambridge University Press, 1993, p. 3; Kreeft P. Fundamentals of the Faith. San Francisco: Ignatius Press, 1988, p. 74-80. On line (Chapter 11) as "The Uniqueness of Christianity." (Accessed 2015-03-05)

26.  This presumption obviously underlies standard bioethics texts. See, for example, Beauchamp TL, Childress JF, Principles of Biomedical Ethics (7th ed) New York: Oxford University Press, 2013

27.  Benson, I.T., "Seeing Through the Secular Illusion" (July 29, 2013). NGTT Deel 54 Supplementum 4, 2013. (Accessed 2014-02-18)

28.  Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 (SCC), para. 137 (Accessed 2014-08-03). Dr. Benson adds: "Madam Justice McLachlin, who wrote the decision of the majority, accepted the reasoning of Mr. Justice Gonthier on this point thus making his the reasoning of all nine judges in relation to the interpretation of ‘secular.’" Benson I.T., "Seeing Through the Secular Illusion" (July 29, 2013). NGTT Deel 54 Supplementum 4, 2013.  (Accessed 2014-02-18)

29.  Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, "Physicians and the Ontario Human Rights Code." 15 August, 2008. (Accessed 2014-03-11), citing Norton K.C. "Letter to Ontario's Attorney General expressing concern about allowing public officials to refuse to marry same-sex couples." (Accessed 2014-03-11)

30.  Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, "Physicians and the Ontario Human Rights Code." 15 August, 2008. (Accessed 2014-03-11)

31.  ". . . if, despite being a belief system, secularism is not excluded from the public square, then religious voices should not be excluded on that basis. The mistake is in taking a disjunctive (either secularism or religion) approach to a situation that requires a conjunctive (both this and that, secularism and religion) approach. We need all voices to be heard in the democratic public square." Somerville M. "Should religion be evicted from the public square?" The Warrane Lecture 2011. Kensington, NSW Australia: Warrane College, August, 2011, p. 12. (Accessed 2014-08-02)

32.  Waldron, MA, "Campuses, Courts and Culture Wars." Convivium, February/March 2014, p. 33

33.  The distinction between ethics and morality is mainly a matter of usage. Recent trends identify ethics as the application of morality to a specific discipline, like medicine or law. In a broader and older sense, ethics is concerned with how man ought to live, while the study of morality focuses on ethical obligations. See the entry on "Ethics and Morality" in Honderich T. (Ed.) The Oxford Companion to Philosophy (2nd Ed.) Oxford: Oxford University Press, 2005.

34.  Murphy S. "Redefining the Practice of Medicine- Euthanasia in Quebec, Part 6: Participation in Killing." Protection of Conscience Project, July, 2014.

35.  Marmor A. Law in the Age of Pluralism. New York: Oxford University Press, 2007, p. 218

36.  Mackay B. "Sign in office ends clash between MD's beliefs, patients' requests." CMAJ January 7, 2003 vol. 168 no. 1 (Accessed 2014-02-16 )

37.  Cannold L. "The questionable ethics of unregulated conscientious refusal."  ABC Religion and Ethics, 25 March, 2011. (Accessed 2013-08-11)

Human Rights Council, Twentieth session, Agenda items 2 and 3: Annual Report of the Office of the United Nations High Commissioner for Human Rights- Technical guidance on the application of a human rights based approach to the implementation of policies and programmes to reduce preventable maternal morbidity and mortality (2 July, 20012) para. 61, 30 (Accessed 2013-08-11)

O'Rourke A, De Crespigny L, and Pyman A. "Abortion and Conscientious Objection: The New Battleground" (July 10, 2012). Monash Law Review (2012) Vol 38(3): 87-119. (Accessed 2013-08-18)

Finer L., Fine JB., "Abortion Law Around the World: Progress and Pushback."  American Journal of Public Health, Apr 2013, Vol. 103 Issue 4, p. 585. (Accessed 2013-08-18)

Human Rights Council, 23nd Session - June 3, 2013.  Agenda Item 3: Presentation of Reports by the Special Rapporteur on Violence against Women. "Oral Statement: Center for Reproductive Rights."  (Accessed 20-13-08-11)

38.  Gardner J. "Complicity and Causality," 1 Crim. Law & Phil. 127, 129 (2007). Cited in Haque, A.A. "Torture, Terror, and the Inversion of Moral Principle." New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

39.  Haque, A.A. "Torture, Terror, and the Inversion of Moral Principle." New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

40.  Murphy S. "Redefining the Practice of Medicine- Euthanasia in Quebec, Part 9: Codes of Ethics and Killing." Protection of Conscience Project, July, 2014.

41.  Email to the Administrator, Protection of Conscience Project, from P__ H__ (present at College Council meeting 18 September, 2008) (2014-02-11, 10:10 am)

42.  Wiesel E. "Without Conscience." N Engl J Med 352;15 april14, 2005 (Accessed 2014-02-24)

43.  Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 (Accessed 2014-07-29)

44.  Cromwell, Oliver, "Declaration of the Lord Lieutenant of Ireland." (January, 1649) Carlyle, Thomas, Oliver Cromwell’s Letters and Speeches, with elucidations. Boston: Estes and Lauriat, 1886, Vol. I, Part 5, p. 18.

45.  This section of the paper draws from an extended discussion of the subject in Murphy S, Geunis S.J. "Freedom of Conscience in Health Care: Distinctions and Limits." J Bioeth Inq. 2013 Oct; 10(3): 347-54 

46.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 165.  Accessed 2015-02-26.

47.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 176. Accessed 2015-02-26.

48.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 166. Accessed 2015-02-26.

49.   R. v. Salituro, [1991] 3 S.C.R. 654; Québec (Curateur public) c. Syndicat national des employés de l'Hôpital St-Ferdinand, [1996] 3 S.C.R. 211 (Accessed 2015-03-05).

50.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 179. Accessed 2015-02-26.

51.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 95-96. Accessed 2015-02-26.

52.  Carter v. Canada (Attorney General), 2015 SCC 5, para. 132. (Accessed 2015-02-25)

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