Appendix "G"

Full Text

GI.    Referral and abandonment

GI.1    In 2004 an exchange of letters in the Journal of the Society of Obstetrics and Gynaecology Canada between a physician and Professors Rebecca J. Cook and Bernard  Dickens1 prompted the Administrator of the Protection of Conscience Project to write to the Journal.2   He challenged the Cook/Dickens claim that Canadian courts require that physicians who refuse to provide abortions for reasons of conscience have an obligation to refer patients for the procedure. He noted that the only authority they cited to support their avowal that courts "continue" to demand referral was a less than contemporary ruling in Zimmer v. Ringrose, a 23 year old case from the Alberta Court of Appeal.3

GI.2    The published letter from the Project pointed out that Zimmer addressed the failure to obtain informed consent to silver nitrate sterilization and failure to provide adequate follow-up care, not referral. Professors Cook and Dickens countered that the Administrator had misrepresented legal cases because he had failed to consider "historical background jurisprudence" that shapes court decisions.

GI.3     Summarizing what they believed to be the "continuing relevance of the Zimmer case," they claimed that failure to refer for abortion is "negligence close to abandonment."

[T]he "failure to provide adequate follow-up care" that Mr. Murphy acknowledges consisted in the defendant physician's failure to refer his patient to another physician who could facilitate the abortion she wanted. The Court found that this failure was negligence close to abandonment . . . a wilful failure or refusal to refer . . . may justify an award of aggravated or exemplary damages. (emphasis added)4

GI.4    However, they cited no authorities to support their understanding of the case. Moreover, the rulings followed and referred to by the Court of Appeal in Zimmer were about informed consent, not freedom of conscience.5

GI.5    The only relevant "historical background jurisprudence" appears to be the earlier decision of the trial court in Zimmer, and this did not assist Cook and Dickens. The failure to provide adequate follow-up care had two elements - not one, as the authors implied. The first was the physician's failure "to follow his patient's progress by conducting regular medical examinations during the summer of 1973," an omission the trial judge found to be "inconsistent with good clinical practice" that contributed to the fact that her pregnancy was not detected earlier.6

GI.6    The second element was not the "failure to refer" alleged by the authors; the physician did not refuse or fail to refer the patient for abortion. In fact, she understood from him that she should have an abortion as soon as possible.7 Nor was the issue a refusal to refer "for the abortion she wanted" (emphasis added). It was, rather, his decision to refer the woman for an abortion in Seattle rather than Edmonton. He testified that he advised her to get an abortion in Seattle to avoid the delay involved in Edmonton, where, he said, it was then necessary to obtain a psychiatric report to justify the procedure. He also believed that the suction procedure used in Seattle would be less traumatic for the patient than the saline method employed in Edmonton.8

GI.7    The key fact noticed by the Court in ruling against the physician was that he "made no attempt to secure an abortion for the respondent in a hospital in Edmonton" (by, for example, referring her to a colleague) and thus failed "to display the degree of care and concern dictated by the situation."9

GI.8    The trial judge had noted the same thing, and was sceptical of the physician's evidence:

I cannot find that the [physician] made any effort to get medical and hospital care in Edmonton for the abortion and in this respect his attitude appears to have been casual. He failed to do everything he could for the welfare of his patient, and I cannot accept as true his statement to Mrs. Zimmer that she would have to be declared mentally unsound before she could be admitted to hospital in Edmonton for an abortion . . . At least. . . he should have consulted another gynaecologist in Edmonton before suggesting that she go to Seattle.10

GI.9    In other words, having told the patient that she should get an abortion as soon as possible, he was expected to at least attempt to secure an abortion for the patient in Edmonton at the earliest opportunity. Rather than making such an attempt, he based his advice to go to Seattle on an untested assumption about the availability of the procedure. The patient took his advice and went to Seattle, but she was found to be too far along for suction. A saline abortion was performed, and "Mrs. Zimmer was left to abort in a hotel room, unattended my medical personnel." Thus,

[T]he respondent underwent a more painful and emotionally distressing experience than was necessary in the circumstances. Her suffering would have been substantially reduced if the appellant had discharged his duty by arranging hospital care.11

GI.10    A review of Zimmer suggests that one can argue that a physician who urgently recommends a procedure to a patient has a duty to do all that he reasonably can to help the patient obtain it, but Zimmer does not speak to a case in which a physician, for reasons of conscience, refuses to recommend a procedure at all.

GII.    Fiduciary duty

GII.1    Professors Cook and Dickens' second legal claim, that the fiduciary duties of physicians requires them to subordinate their conscientious convictions to those of their patients, rested upon a more recent Supreme Court of Canada case, McInerney v. MacDonald.12 But McInerney had absolutely nothing to do with conflicts of conscience. It concerned the duty of a physician to release a patient's medical records to her upon request.

GII.2    While the court noted that the fiduciary relationship between physician and patient obliged the physician to disclose the records, the nature of fiduciary relationships was not discussed at length. Moreover, the Supreme Court ruled that fiduciary relationships and obligations are "shaped by the demands of the situation"; they are not governed by a "fixed set of rules and principles". Mr. Justice La Forest, writing for the court, stated, "A physician-patient relationship may properly be described as 'fiduciary' for some purposes, but not for others."13

GII.3    In other words, that the physician patient relationship is fiduciary for the purpose of disclosing patient records does not imply that it is fiduciary for the purpose of suppressing the conscientious convictions of the physician.

GII.4    Finally, the court in McInerney accepted the characterization of the physician-patient relationship as "the same . . . as that which exists in equity between a parent and his child, a man and his wife, an attorney and his client, a confessor and his penitent, and a guardian and his ward."14 Pursuing the analogy, no one has ever suggested that the fiduciary obligations of parents, husbands, attorneys, confessors, and guardians require them to sacrifice their own integrity to the "desires" of others. McInerney does not even remotely imply that physicians have such a duty.

This appendix is taken from Murphy S. "Postscript for the Journal of Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and Dickens." Protection of Conscience Project (2005)

Notes

1.  Cook RJ, Dickens BM, Access to emergency contraception. J. Obstet Gynaecol Can 2003;25 (11):914-6; Bright, H. Access to emergency contraception [letter]. J. Obstet Gynaecol Can 2004; 26(2)111; Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can 2004; 26(2)112 

2.  There was some resistance to publishing the Project's first letter, the editor citing Journal policy against publishing "letters that are responses to letters of response" and the fact that the original article had appeared six months earlier (Letter from the Editor in Chief, Journal of Obstetrics and Gynaecology Canada to the Administrator, Protection of Conscience Project, 7 May, 2004). The Administrator did not insist upon publication, but asked if the Journal would publish a correction to the legal misinformation supplied by Professors Cook and Dickens. (Letter from the Administrator, Protection of Conscience Project, to the Editor in Chief, Journal of Obstetrics and Gynaecology Canada, 14 May, 2004)This led to the appearance of the Project's letter with the rejoinder by Cook and Dickens and the announcement by the editor that the subject was closed. The Administrator later supplied the Journal's editor with the present information and repeated his previously expressed concerns about misleading legal claims.  Unwilling to seem disrespectful of editorial autonomy, he limited himself to the suggestion that Professors Cook and Dickens might be allowed to write at greater length in the Journal in future, since they had suggested that they had not had the scope "for fully referenced legal or ethical reasoning." (Letter from the Administrator, Protection of Conscience Project, to the Editor in Chief, Journal of Obstetrics and Gynaecology Canada, 8 August, 2005).

3. Zimmer v. Ringrose (1981), 124 Dominion Law Reports (3d) 215 (Alberta Court of Appeal)

4. Cook RJ, Dickens BM, Access to emergency contraception [letter] J.Obstet Gynaecol Can 2004; 26(8):706.

5.  Riebl v. Hughes (1980), 114 DLR (3rd) 1, (1980) 2 SCR 880, 14 CCLT 1, 33 NR, 361; Hopp v. Lepp (1980), 112 DLR (3d) 67, (1980) 2 SCR 192, (1980) 4 WWR 645, 22 AR 361, 13 CCLT 66, 32 NR 145, followed; Trogun v. Fruchtman (1973), 207 NW 2d 297; Downer v. Veilleux (1974), 322 A. 2d 82, referred to.

6. Zimmer v. Ringrose (1981), 124 DLR (3d) 225-226 (Alberta Court of Appeal); Zimmer v. Ringrose (1978), 89 Dominion Law Reports (3d) 657 (Alberta Supreme Court)

7.  Zimmer v. Ringrose (1981), 124 DLR (3d) 219 (Alberta Court of Appeal); Zimmer v. Ringrose (1978), 89 DLR (3d) 649 (Alberta Supreme Court)

8. Zimmer v. Ringrose (1981), 124 DLR (3d) 219 (Alberta Court of Appeal); Zimmer v. Ringrose (1978), 89 DLR (3d) 649 (Alberta Supreme Court)

9. Zimmer v. Ringrose (1981), 124 DLR (3d) 226 (Alberta Court of Appeal)

10. Zimmer v. Ringrose (1978), 89 DLR (3d) 657-658 (Alberta Supreme Court)

11. Zimmer v. Ringrose (1981), 124 DLR (3d) 226 (Alberta Court of Appeal); Zimmer v. Ringrose (1978), 89 DLR (3d) 657 (Alberta Supreme Court)

12. McInerney v. MacDonald (1992), 93 Dominion Law Reports (4th) 415 (Supreme Court of Canada)

13. Recalling an earlier case (Canson Enterprises Ltd. v. Boughton & Co. [1991] 3 S.C.R. 534)

14. Quoting LeBel, J. in Henderson v. Johnston, [1956] O.R. 789 at p. 799.

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