Abstract

Conscientious Objection is unacceptable because it attacks the character and competence of objecting physicians, and it nullifies their freedom of conscience by compelling them to arrange for patients to obtain services to which they object.

Council has been given no evidence that anyone in Saskatchewan has ever been unable to access medical services 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. In the absence of such evidence, the limits proposed in Conscientious Objection are neither reasonable nor demonstrably justified.

Conscientious Objection is not justified by the principles included in the policy because there is no necessary connection between the principles and a policy requiring physicians to do what they believe to be wrong. The principles can be applied to force physicians to facilitate morally contested procedures only if they are ideologically interpreted in order to impose one world view at the expense of others. The Supreme Court of Canada has unanimously affirmed that such an approach is unacceptable.

It is unrealistic to believe that the approach taken in Conscientious Objection will not be taken with respect to physician administered euthanasia and physician assisted suicide. The disclaimer to the contrary is ill-advised and misleading. A policy on Conscientious Objection should be sufficiently flexible to apply to direct or indirect participation in killing patients or helping them commit suicide. If Council is uncertain how this can be done, it should postpone policy development concerning Conscientious Objection until after the Carter decision comes into force in 2016.

Alternatively, if the College believes that some kind of guidance should be provided with respect to this contentious issue, the Project offers an alternative that protects physician freedom of conscience and religion but does not obstruct patient access to services, including euthanasia and assisted suicide.

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TABLE OF CONTENTS

I.    Introduction

II.    Overview of this submission

III.    Limitation of fundamental freedoms

IV.    "Purpose" and "Principles"

V.    Scope of Conscientious Objection

V.1    The disclaimer

V.2    Dissecting the disclaimer

V.3    Summary

V.4    Recommendations

VI.    Physician obligations

5.1    Taking on new patients (Comment)

• Project alternative

5.2    Providing information to patients

• Project alternative

5.3    Exercise of freedom of conscience and religion

• Project alternative

5.4    Necessary treatments to prevent harm to patients

• Project alternative

Appendix "A" - Conscientious Objection- "Purpose" and "Principles": Comment and critique

A1.    Introduction

A2.    "The fiduciary relationship between a physician and a patient."

A3.    "Patient autonomy."

A4.    "A patient's right to continuity of care."

"Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians."

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

A5.    "A patient's right to information about their care."

"Physicians have an obligation to provide full and balanced health information, referrals and health services to their patients in a non-discriminatory fashion."

A6.    "Physicians should not intentionally or unintentionally create barriers to patient care."

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

A7.    "The College has a responsibility to impose reasonable limits on a physician's ability to refuse to provide care where those limits are appropriate."

A8.    "Medical care should be equitably available to patients whatever the patient's situation, to the extent that can be achieved."

A9.    "The College of Physicians and Surgeons has an obligation to serve and protect the public interest."

A10.    "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."

A11.    "Physicians' freedom of conscience should be respected."

A12.    "Physicians' exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services."

A13.    "Physicians' exercise of freedom of conscience to limit the services that they provide to patients should be done in a manner that respects patient dignity, facilitates access to care and protects patient safety."

A14.    Summary

Appendix "B" - Scope of Conscientious Objection
Purported non-applicability of policy to assisted suicide, euthanasia

B1.    Disclaimer

B2.    Disclaimer inconsistent with opinion of the CMPA

B3.    Disclaimer inconsistent with policy origin, previous statements

B4.    Disclaimer inconsistent with links between abortion and euthanasia

B5.    Principles support coercion of physicians to facilitate euthanasia

B5.3    "The fiduciary relationship between a physician and a patient."

B5.4    "Patient autonomy."

B5.5   "A patient's right to continuity of care."

"Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians."

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

B5.6    "Physicians should not intentionally or unintentionally create barriers to patient care."

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

"Physicians' exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services."

B5.7    "Medical care should be equitably available to patients whatever the patient's situation, to the extent that can be achieved."

B5.8    "The College has a responsibility to impose reasonable limits on a physician's ability to refuse to provide care where those limits are appropriate."

B5.9    "The College of Physicians and Surgeons has an obligation to serve and protect the public interest. 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."

B6.    Unsatisfactory reasons offered to support the disclaimer

B6.1    Questioning the reasons

B6.2    Answering the questions

Appendix "C" - Conscientious Objection - 5.  Physician Obligations
Comment and Critque

C1.    5. Obligations (Project alternative)

5.1    Taking on new patients

5.2    Providing information to patients

5.3    Exercise of freedom of conscience and religion

5.4    Necessary treatments to prevent harm to patients

C2.    Conscientious Objection and Project alternative compared

Table A. Taking on new patients

Table B.  Providing information to patients

Table C.  Exercise of freedom of conscience and religion

Table D.  Necessary treatments to prevent harm to patients

C3.    Commentary corresponding to the tables in C2

Table A  5.1 Taking on new patients

Table B  5.2 Providing information to patients

Table C  5.3 Exercise of freedom of conscience and religion

Table D  5.4 Necessary treatments to prevent harm to patients.

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I.    Introduction

I.1    Conscientious Objection was preceded by two earlier versions of the policy. The Protection of Conscience Project made submissions about both.

• Conscientious Refusal, approved in principle by College Council on 20 January, 20151 (hereinafter "CR No. 1").
  • Project Submission (5 March, 2015)2 (hereinafter "Submission-CR No. 1")
    
• Conscientious Refusal, a revision of CR No. 1 re-submitted to Council on 20 March, 2015 (hereinafter "CR No. 2")3
  • Project Submission (5 June, 2015)4 (hereinafter "Submission-CR No. 2")

I.2    For the most part, comments made about CR No. 1 and CR No. 2 in the two previous Project submissions are applicable to Conscientious Objection and remain valid. Some of them are incorporated into this submission.

I.3    Conscientious Objection is problematic because, in its attempt to ensure patient access to services - itself an entirely acceptable goal - it attacks the character and competence of objecting physicians and it suppresses or at least unacceptably restricts physician freedom of conscience and religion. In particular:

• it attacks the character and competence of objecting physicians by prohibiting them from communicating with their patients about morally contested services; and
• it suppresses or at least unacceptably restricts physician freedom of conscience and religion by compelling them to arrange for patients to obtain morally contested services.

II.    Overview of this submission

II.1    This submission first briefly addresses the College's attempt to limit physician freedom of conscience and religion through Conscientious Objection. The Project submits that the proposed limitations are not justified (Part III).

II.2    It next deals with the principles that are offered to support the policy. The Project submits that the policy can be justified only by an unacceptably narrow ideological interpretation of the principles (Part IV: Appendix "A").

II.3    The Project submits that it is unrealistic to believe that the provisions of Conscientious Objection will not be applied to euthanasia and assisted suicide, and that the disclaimer indicating that it does not apply should be deleted (Part V: Appendix "B").

II.4    This submission offers an alternative to Section 5 of Conscientious Objection that simplifies the policy, is consistent with establish legal and ethical expectations and which permits the exercise of physician freedom of conscience and religion without obstructing patient access to services, including euthanasia and assisted suicide (Part VI: Appendix "C").

II.5    Detailed arguments relevant to each part of the submission have been provided in the related appendices.

III.    Limitation of fundamental freedoms

III.1    By means of Conscientious Objection, College Council intends to limit the fundamental freedoms of conscience and religion.

III.2    According to the Canadian Charter of Rights and Freedoms, freedoms of conscience and religion can be subjected "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."5(Emphasis added)

III.3    As the state regulator of the practice of medicine in Saskatchewan, the College is obliged to adhere to the Saskatchewan Human Rights Code and the Charter of Rights and Freedoms with respect to the accommodation of freedom of conscience and religion. The general rule is that the exercise of freedom of conscience and religion by physicians must be accommodated by the College to the point of undue hardship.6

III.4    When the Council approved Conscientious Objection in principle in June, 2015, despite extensive consultation, it had no evidence that anyone in Saskatchewan had ever been unable to access medical services, and no evidence that the health of anyone in Saskatchewan had ever been adversely affected because a physician had declined to provide or refer for a procedure for reasons of conscience. In the absence of such evidence, the limits proposed in Conscientious Objection are neither reasonable nor demonstrably justified.

IV.    "Purpose" and "Principles"

IV.1    Conscientious Objection refers to a number of important and well-established principles: the fiduciary duty of physicians, their duty of non-abandonment, patient autonomy, principles of informed consent and decision-making, equity, and respect for human dignity and freedom of conscience. Other principles found in Conscientious Objection - various formulations of continuity of care and non-obstruction - have force to the extent that they reflect these fundamental principles.

IV.2    Nonetheless, these principles did not prevent the Canadian Medical Association (CMA) from developing and maintaining its long-standing position that unwilling physicians should not be forced to facilitate procedures to which they object for reasons of conscience. The authors of Conscientious Objection avoided any reference to this, and deliberately omitted the key section of the CMA Code of Ethics that might have brought it to mind (Appendix "A", A1).

IV.3    Conscientious Refusal is not justified by the principles included in the policy because, as the history of the CMA position indicates, there is no necessary connection between the principles and a policy requiring physicians to do what they believe to be wrong.  Different philosophical or ethical approaches can be applied to qualify or interpret the principles, leading to different conclusions. The principles can be applied to force physicians to facilitate morally contested procedures only if they are ideologically interpreted - only if the criticism, qualifications and distinctions like those provided in Appendix "A" are ignored or disallowed (Appendix "A", A2 to A13).

IV.4    This appears to explain Conscientious Objection deliberately excludes reference to the most relevant section of the CMA Code of Ethics and the CMA's historical rejection of mandatory referral by objecting physicians. Conscientious Objection is intended to impose a particular world view and to suppress others, notably the world view that generated the very principles it cites.

IV.5    In its attempt to impose a particular world view at the expense of others, Conscientious Objection fails to meet the standard unanimously affirmed by the Supreme Court of Canada. 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, further, that the state should not endorse and enforce "one conscientiously-held view at the expense of another."7

V.    Scope of Conscientious Objection

V.1    The disclaimer

V.1.1    Conscientious Objection includes the following disclaimer:

This policy does not apply to physician-assisted death or physicians' Conscientious Objection related to a potential physician-assisted death. The College recognizes that this is currently an issue which is in a state of development and may be revisited by the College at a later time.

V.1.2    Associate Registrar Bryan Salte offered a more detailed explanation:

There is considerable uncertainty associated with physician-assisted death following the Carter decision. There may be legislation by the Federal or Provincial Government which addresses the issue before February 2016 when the Carter decision will come into effect if no new legislation is passed. The ethical implications of physician-assisted death have not been fully explored.

The situation of physician-assisted death can be revisited later, when it is clearer whether there will be legislation that addresses the issue and, if there will be, what the legislation will state.7

V.1.3    Committee member Dr. Susan Hayton explicitly supported this position, noting that "the boundaries of this whole area are very grey at the moment."8

V.2    Dissecting the disclaimer   

V.2.1    However, the disclaimer is inconsistent with

• the opinion of the Canadian Medical Protective Association (Appendix "B", B2);
  
• the origin of the policy and previous statements by the Associate Registrar and others (Appendix "B", B3);
  
• previous arguments associating the provision of abortion/contraception with the provision of euthanasia/assisted suicide (Appendix "B", B4).

V.2.2    Moreover, 11 of the 16 principles in Conscientious Objection are as supportive of euthanasia and assisted suicide as they are of abortion and contraception, and a number of them have already been put forward as reasons to compel physician involvement in assisted suicide and euthanasia (Appendix "B", B5).

V.2.3    Finally, the reasons offered by Mr. Salte and Dr. Hayton to support the disclaimer are completely unsatisfactory. It appears that the disclaimer has been added to the policy either to secure passage of the policy by defusing opposition that has been amplified by the pending legalization of assisted suicide and euthanasia, or because at least some committee members realized that if the College can force physicians to do what they believe to be wrong with respect to abortion and contraception, it can force physicians to do what they believe to be wrong with respect to killing patients and helping them commit suicide (Appendix "B", B6).

V.3    Summary

V.3.1    If the policy Conscientious Objection can be used force physicians to do what they believe to be wrong with respect to abortion, contraception and other morally contested procedures, it can be used to force physicians to do what they believe to be wrong with respect to killing patients and helping them commit suicide. This conclusion is entirely consistent with opinion of the CMPA, the origin and development of the policy, the known views of the Associate Registrar, and the principles proposed in the policy itself.

V.3.2    The reasons offered by Mr. Salte and Dr. Hayton are entirely unsatisfactory, since they appear to have been offered either as a tactic to blunt the overwhelming opposition to the policy or because at least some committee members recognized the issue noted in V.3.1.

V.3.3    The Project submits that it is unrealistic to believe that Conscientious Objection will not be applied to physician administered euthanasia and physician assisted suicide, either directly, after a certain length of time, or indirectly, as a paradigm for further policy development. Including the disclaimer is thus ill-advised and misleading.

V.4    Recommendations

V.4.1    If College Council is determined to enact a policy on Conscientious Objection, it should ensure that it is sufficiently flexible to accommodate physicians who are unwilling to do what they believe to be wrong, not excluding direct or indirect participation in killing patients or helping them commit suicide.

V.4.2    If Council is uncertain how this can be done, it should postpone policy development concerning Conscientious Objection until after the Carter decision comes into force in 2016.

V.4.3    Alternatively, if the College believes that some kind of guidance should be provided with respect to this contentious issue, the Project offers an alternative in Part VI that protects physician freedom of conscience and religion but does not obstruct patient access to services, including euthanasia and assisted suicide.

VI.    Physician obligations

VI.1 5.1    Taking on new patients: The provisions concerning taking on new patients are generally satisfactory, but a qualification is needed with respect to the meaning of "discrimination."

VI.2    While it is agreed that physicians should not engage in unlawful discrimination, it must be understood that conscientious objectors are not discriminating on the basis of the sex, marital status or "group status" of the patient. They are concerned to avoid moral complicity in wrongdoing. It seems highly unlikely that a physician would refuse to accept a patient for reasons of conscience or religion.

VI.3    It is unnecessary and unrealistic to require physicians to notify every patient before or when the patient is accepted of all services that they will not provide for reasons of conscience or religion. It makes more sense to insist on notification when there is actually some reason to believe that it is advisable to do so to avoid inconvenience to the patient or conflict.

VI.4    It is reasonable to expect that physicians will develop plans to minimize inconvenience and conflict that might arise in relation to their refusal to provide services for reasons of conscience or religion. However, this would seem to be better addressed in the section of the policy dealing with obligations related to the exercise of freedom of conscience and religion.

VI.5    Accordingly, the Project recommends moving the last paragraph of sub-section 5.1 (Taking on new patients) and concluding the sub-section as follows:  

VI.6 5.2    Providing information to patients: The requirement in this sub-section that physicians provide information even if doing so violates their religious or moral convictions is inflammatory and unnecessary. So, too, is the accusation implied by reference to the provision of false, misleading, intentionally confusing, coercive, or materially incomplete information.

VI.7    It has not been the experience of the Project that objecting physicians are unwilling to provide information sufficient to fulfil the requirements of informed medical decision-making. Accordingly, what is proposed is a revision of the sub-section to focus on that goal.

VI.8    Since all physicians are expected to provide information sufficient to fulfil the requirements of informed medical decision making, and since providing information for that purpose is not generally understood to involve wrongdoing, there is no need to refer to the exercise of freedom of conscience or religion in this context.

VI.9    Where indicated, the following adopts, modifies and/or expands upon provisions of Conscientious Objection.

VI.10    Exercise of freedom of conscience and religion: Conscientious Objection clearly presumes that, by virtue of moral opposition to a service, a physician cannot be trusted and must be forced to refer patients seeking a morally contested service to a purportedly 'unbiased' party who can be trusted to act honestly.

VI.11    This is not an attack on freedom of conscience. It is, however, an attack on the character and competence of objecting physicians. Solely on the basis of their beliefs, it implies that they are unacceptably biased and effectively prohibits objecting physicians from communicating with their patients about morally contested procedures.

VI.12    The assumption underlying the demand is that a physician who has a moral viewpoint is incapable of properly communicating with a patient. But all physicians have moral viewpoints. Conscientious Objection simply exchanges one kind of 'bias' for another. If the College is to be fair and consistent, the 'bias' of physicians who do not object to a procedure should be nullified in the same way.

VI.13    Such a policy would do nothing more than 'protect' patients from one kind of alleged 'bias' by exposing them to another. It would only inconvenience patients and provide them with no better care.

VI.14    The problems with this approach were thoroughly canvassed in Project Submission-CR No. 2.  Medicine is a moral enterprise, and the College cannot fairly and consistently control for or eliminate the exercise of bona fide moral judgement without grotesquely deforming medical practice. It can only do it unfairly and inconsistently by an authoritarian suppression of moral viewpoints selected arbitrarily, or selected on the basis of their unpopularity with those in positions of power and influence.

VI.15    That appears to be mindset that has caused the problem with this part of Conscientious Objection. It squarely contradicts the repeated and eventually unanimous assertion of the full bench of the Supreme Court of Canada: 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."7

VI.16    The expectation that an objecting physician should advise patients that they can see a different physician or seek the service elsewhere conforms to the spirit of the motion and is respectful of patient autonomy. A patient-initiated transfer of care seems unproblematic and is the procedure used to accommodate objecting physicians in jurisdictions where assisted suicide and/or euthanasia are legal.

VI.17    A demand that an objecting physician help a patient obtain a morally contested service is unacceptable for the reason given by Dr. Charles Bernardin, the President of the Collège des Médecins du Québec. Speaking at a legislative committee hearing into what later became Quebec's euthanasia law, Dr. Bernardin explained:

[I]f you have a conscientious objection and it is you who must undertake to find someone who will do it, at this time, your conscientious objection is [nullified]. It is as if you did it anyway. / [Original French] Parce que, si on a une objection de conscience puis c'est nous qui doive faire la démarche pour trouver la personne qui va le faire, à ce moment-là, notre objection de conscience ne s'applique plus. C'est comme si on le faisait quand même.  15

VI.18    However, it is important to recognize that the response of objecting physicians when faced with a patient request for assistance will vary according to the beliefs and moral reasoning of the physician and the particular facts of each case.

VI.19    Hence, the Project alternative offers physicians a choice from among a range of responses that do not obstruct patient access to services.

VI.20    Necessary treatments to prevent harm:  The Project has not encountered physicians unwilling to provide medical treatment that is urgently needed to prevent serious harm to patients. However, in the event that such an allegation is made, the issues are likely to be contested and complex. Hence, the Project alternative uses simplified terminology that is consistent with existing ethical and legal expectations, and cautions physicians to be mindful of their civil liability for malpractice or negligence.

VI.21    There is no need to refer to the possibility of investigation or discipline by the College, since the conduct of physicians who fail to conform to the norm established in 5.4(1) is subject to review by the College as a matter of course, whether or not moral or religious beliefs of a physician were contributory.

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Notes

1.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 3.

2.  Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Saskatchewan Re: Conscientious Refusal, 5 March, 2015

3.  Salte BE. Memorandum to Council re: Draft Policy- Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) p. 10-17.

4.  Salte BE. Memorandum to Council re: Draft Policy- Conscientious Objection, 23 March, 2015 (CPSS No. 75/15) p. 4-11.

5.  Salte BE. Memorandum to Council re: Draft Policy- Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) p. 5.

6.  "In Defence of Charter Freedoms: A legal analysis of the 'Policy - Conscientious Refusal.'" Submission to the College of Physicians and Surgeons of Saskatchewan by the Justice Centre for Constitutional Freedoms (March, 2015) (Accessed 2015-08-07)

7.  The statement was made by Madame Justice Bertha Wilson in R. v. Morgentaler (1988)1 S.C.R 30 p. 166 (Accessed 2015-02-26), affirmed unanimously in 1991 by a panel of five judges in R. v. Salituro [1991] 3 S.C.R. 654 (Accessed 2015-08-05), and again unanimously affirmed by the full bench of the Court in Québec (Curateur public) c. Syndicat national des employés de l'Hôpital St-Ferdinand [1996] 3 S.C.R. 211 (Accessed 2015-03-05).

8.  Salte BE. Memorandum to Council re: Draft Policy, Conscientious Objection, 20 March, 2015 (CPSS No. 73/15), p. 5.

9.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 12.

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)

10.  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)

11.  Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care (1999) (Canadian Medical Association, Canadian Healthcare Association, Canadian Nurses' Association, Catholic Health Association of Canada)

12.  Canadian Medical Association  Code of Ethics (2004): "23. Recommend only those diagnostic and therapeutic services that you consider to be beneficial to your patient or to others. . ." (Accessed 2015-08-07)

13.  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 2015-08-07)

14.  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 2015-08-07)

15.  Consultations: College of Physicians of Quebec (Tuesday 17 September 2013 - Vol. 43 no. 34), T#154.

16.  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)

17.  Canadian Medical Association  Code of Ethics (2004): "19. Having accepted professional responsibility for a patient, continue to provide services until they are no longer required or wanted; until another suitable physician has assumed responsibility for the patient; or until the patient has been given reasonable notice that you intend to terminate the relationship." (Accessed 2015-08-07)

18.  Canadian Medical Association  Code of Ethics (2004): "18. Provide whatever appropriate assistance you can to any person with an urgent need for medical care. "(Accessed 2015-08-07)

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