Appendix "A"

A1.    Introduction

Full Text

A1.1    Notably absent from the principles is any reference to a key section of the Canadian Medical Association (CMA) Code of Ethics:

12. Inform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants.1

A1.2    This does not impose a duty on an objecting physician to help the patient obtain the morally contested service elsewhere. Moreover, in 1978, after a trial of one year, the CMA abolished a requirement to that effect because there was no ethical consensus to support it, and has maintained that position for almost forty years.2 The College was aware of this because this information was provided in Appendix "B" of the Project's first submission.

A1.3    There is no reference to this key statement, and the long-standing position of the CMA does not appear anywhere in Conscientious Objection. However, the draft policy quotes four other sections of the CMA Code of Ethics verbatim: three under "Purpose" in the third and fourth bulleted sub-sections, and one under "Obligations" in sub-section 5.1 ("Taking on new patients").

A1.4    All of this indicates that the omission of section 12 and the long-standing position of the CMA was deliberate.

A1.5    16 other principles are offered in two different sections of Conscientious Objection for the purpose of justifying the policy.

A1.6    One principle - that physicians may have legitimate clinical reasons to refuse to provide a service requested by a patient - is a truism that does not require comment. The remainder are considered below, grouped together when appropriate.

A2.    "The fiduciary relationship between a physician and a patient." (1. Purpose)

A2.1    Some writers assert that the fiduciary duties of physicians requires them to subordinate their conscientious convictions to those of their patients. Professors R.J. Cook and B.M. Dickens have made this claim,3 citing the Supreme Court of Canada case, McInerney v. MacDonald.4

A2.2    However, McInerney had absolutely nothing to do with conflicts of conscience. It concerned the duty of a physician to release a patient's medical records to her upon request, and the nature of fiduciary relationships was not discussed at length. Moreover, the Court ruled that fiduciary relationships and obligations are "shaped by the demands of the situation"; they are not governed by a "fixed set of rules and principles." Mr. Justice La Forest, writing for the court, stated, "A physician-patient relationship may properly be described as 'fiduciary' for some purposes, but not for others."5 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.

A2.3    Finally, the court in McInerney accepted the characterization of the physician-patient relationship as "the same . . . as that which exists in equity between a parent and his child, a man and his wife, an attorney and his client, a confessor and his penitent, and a guardian and his ward."6 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.7

A3.    "Patient autonomy." (1. Purpose)

A3.1    The description of the problem as a conflict of autonomy between patient and physician actually precludes a successful resolution by appealing to the principle giving rise to the conflict in the first place. Lawyer Iain Benson explains:

Yes, the patient or "client" has his or her autonomy; but so, too, does the practitioner. There is no good reason (except perhaps one grounded in an anti-religious bias) to advocate that a patient's autonomy should trump the autonomy of the professional health-care worker just because the two views conflict. What is needed . . . is an examination of how to accommodate conscience and religious views within the contemporary technocratic and often implicitly anti-religious paradigm of certain aspects of modern medicine.

The real issue, where there is a conflict of views between people regarding involvement with a procedure or drug, is not settled by reference to one person's "autonomy" but by reference to another principle, that of "justice" (defined as "rendering a person their due"). For it is there, in the order of justice, that competing claims must be reconciled in a manner that accords with the rule of law (including professional ethics and respect for professional disagreement), the provision of health-care and the developed understanding of a civil society.8

A4.    "A patient's right to continuity of care." (1. Purpose)

"Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians." (1. Purpose)

" Physicians have an obligation not to abandon their patients." (4. Principles)

A4.1    The first point to note here is a problem that is found repeatedly in Conscientious Objection: the question-begging assumption that a morally contested service or procedure is "appropriate" or "care" or "health care" or "health service" or "medical treatment" that contributes to a patient's "well-being." An objecting physician may well deny that it is either health care, health service or medical treatment, and will invariably deny that it is "appropriate," if not absolutely, then in particular cases.

A4.2    This is most evident as a result of the Carter ruling. 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" or "medical treatment" or "care" 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.

A4.3    Similarly, 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.

A4.4    Likewise, 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. 

A4.5    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 do what they believe to be wrong 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.

A4.6    Moving from ethics to law, Professors Cook and Dickens also claimed that failing to refer for abortion is a breach of fiduciary duty and constitutes "negligence close to abandonment." However, as noted in Project Submission-CR No. 1, their claims were unsupported by their own legal references.9

A5.    "A patient's right to information about their care." (1. Purpose)

"Physicians have an obligation to provide full and balanced health information, referrals and health services to their patients in a non-discriminatory fashion." (4. Principles)

A5.1    With respect to "care", "health information", and "health services" see A4.

A5.2    It is agreed that patients have a right to full and balanced information so that they can make informed decisions about medical treatment and care. However, the reference to non-discrimination suggests that the College may not correctly understand the reasoning of objecting physicians.

A5.3    Certainly, it would be improper for a physician to refuse to provide services or treatment to patients because of his race, ethnic origin, religious beliefs, etc. But conscientious objectors are concerned to avoid moral complicity in wrongdoing, not with the sex, marital status or "group status" of the patient. Objections, if they arise, are, for example, to abortion, even though only women can have abortions: to premarital sex, even though only unmarried persons can have premarital sex: to the amputation of healthy body parts, even though only apotemnophiliacs are likely to request such surgery.

A5.4    Further, personal characteristics may be relevant to moral judgement. For example: a 20 year old man may not be faulted morally or legally for having sexual intercourse, and a friend may have no objection to making his apartment available for that purpose. However, the friend might well refuse the favour if the prospective bedmate were a nine year old girl rather than a nineteen year old woman, or if the would-be Lothario were cheating on his wife. Age and marital status may both be important factors in the friend's moral evaluation of the act and his decision to avoid complicity in it, even though age and marital status are "personal characteristics."

A5.5    Objecting physicians should not be threatened with discipline for exercising this kind of rationally comprehensive moral reasoning. It would be absurd and profoundly offensive to assert that physicians who refuse to be complicit in adultery, premarital sex, the mutilation or amputation of healthy body parts or the killing of human embryos or fetuses are acting like bigots.

A6.    "Physicians should not intentionally or unintentionally create barriers to patient care." (1. Purpose)

"Physicians have an obligation not to interfere with or obstruct a patient's right to access legally permissible and publicly-funded health services." (4. Principles)

A6.1    With respect to "care" and "health services," see A4.

A6.2    Patients do not have a right to access illegal services. The only right that can exist is with respect to legal services.

A6.3    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 legal health service is not "publicly-funded" does not mean that physicians may interfere with or obstruct access to it.

A6.4    "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.

A6.5    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.

A6.6    Objecting physicians act to preserve their own integrity, not to control the conduct of patients. Thus, it is agreed that physicians who refuse to provide a treatment for reasons of conscience are not entitled to prevent patients from obtaining the treatment elsewhere.

A6.7    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 legally or ethically obliged to help a patient obtain a procedure or service to which the physician objects for reasons of conscience.

A6.8    Nor does it follow that refusal to help a patient obtain a morally contested service amounts to obstruction, interference, or creates a "barrier," any more than the refusal of a vegetarian restaurant to serve meat obstructs or interferes with customers' access to meat or creates a "barrier" to a customer who wants a roast beef sandwich.

A6.9    Obstruction or interference or the erection of barriers requires some positive act. It does not include refusal to do what one believes to be wrong.

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." (1. Purpose)

A7.1    With respect to "care," see A4.

A7.2    It is unlikely that objecting physicians and those who would suppress their freedom of conscience would agree about what counts as "reasonable" or "appropriate" limits.

A7.3    The primary legal responsibility of the College with respect to physician freedom of conscience and religion is to accommodate and minimally impair the exercise of both.

A8.    "Medical care should be equitably available to patients whatever the patient's situation, to the extent that can be achieved." (1. Purpose)

A8.1    With respect to "medical care," see A4.

A8.2    Leaving aside disputes about whether or not a service constitutes medical care or treatment, "equitable" refers to a just distribution or share of something that is owed.

A8.3    Since justice is intrinsic to the concept of equity, justice is essential to achieving it. However, to force someone to do what he believes to be wrong is, as a rule, a grievous violation of the human person, not a mere limitation of freedom. It denies to the human person the freedom essential for a moral agent and treats him as a thing, not a person: a mere instrument or tool to serve the interests of another. It is not a demand for equitable service, but demand for servitude.

A8.4    Hence, the admirable goal of making services equitably available cannot be achieved by forcing physicians to do what they believe to be wrong.

A9.    "The College of Physicians and Surgeons has an obligation to serve and protect the public interest." (4. Principles)

A9.1    This obligation applies generally to every government or state institution.

A9.2    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.

A9.3    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.

A9.4    In any case, the public interest is neither served nor protected by the unjustified suppression or restriction of freedom of conscience and religion. See A6 and A7.

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." (4. Principles)

A10.1    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.

A10.2    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.

A10.3    "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.

A10.4    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.

A10.5    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.

A10.6    Even if otherwise undisputed, it does not follow from this principle that an individual physician is obliged to provide or facilitate access to legal, publicly-funded services to which he objects for reasons of conscience.

A11.    "Physicians' freedom of conscience should be respected." ( 4. Principles)

A11.1    The primary legal responsibility of the College with respect to physician freedom of conscience and religion is to accommodate and minimally impair the exercise of both, not merely to respect it.

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." (4. Principles)

A12.1    For "health services," see A4. For "legally permissible and publicly funded," see A6 and A10.

A12.2    To "interfere with," "obstruct" and "create barriers," this statement adds "impede." The multiplication terms adds nothing of substance to the policy.

 A12.3    The comments made in A6 are applicable here. Refusal to help a patient obtain a morally contested service no more "impedes" the patient than a refusal to help someone campaign for office "impedes" an electoral candidate.

A12.4    To "intentionally or unintentionally" this statement adds "either directly or indirectly." Refusing to do what one believes to be wrong is an intentional act that may have direct or indirect effects on others. It does not follow that refusing to do what one believes to be wrong is improper or illicit, or that it entitles the College to suppress the exercise of freedom of conscience.

A12.5    The increasingly restrictive demands and the multiplication of terms is indicative of a mindset determined to suppress any exercise of freedom of conscience that might, in the least, inconvenience a patient.

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." (4. Principles)

A13.1    With respect to "care," see A4.

A13.2    It is agreed that the exercise of freedom of conscience should not compromise patient dignity or safety.

A13.3    However, it is unacceptable to demand that someone who objects to a procedure for reasons of conscience must, nonetheless, "facilitate access"to that procedure, since that would effectively nullify the exercise of freedom of conscience. Objecting physicians may not obstruct access, but they should not be required to facilitate it.

A14.    Summary

A14.1    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.

A14.2    Nonetheless, these principles did not prevent the 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 related section of the CMA Code of Ethics that might have brought it to mind.

A14.3    Conscientious Objection 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 here are ignored or disallowed.

A14.4    That explains why Conscientious Objection deliberately excludes reference to section 12 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.

A14.5    In its attempt to impose 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."10

Notes

1.  Canadian Medical Association, Code of Ethics (2004) (Accessed 2015-08-05)

2.  Murphy S. "'NO MORE CHRISTIAN DOCTORS', Appendix 'F': The Difficult Compromise- Canadian Medical Association, Abortion and Freedom of Conscience."  Protection of Conscience Project.

3.  Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can, February, 2004; 26(2)112.

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

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

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

7.  For an analysis of subsequent arguments made by Cook and Dickens on this point, see Murphy S. "Postscript for the Journal of Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and Dickens." Protection of Conscience Project

8.  Benson IT. "'Autonomy', 'Justice' and the Legal Requirement to Accommodate the Conscience and Religious Beliefs of Professionals in Health Care." Protection of Conscience Project.

9.  Submission CR No. 1, Appendix "G": Notes on Referral, Abandonment and Fiduciary Duty.

10.  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).

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