I.    Seeking Reconciliation

Introduction

I.1    The Protection of Conscience Project advocates for the support and protection of the human dignity of health care workers, reflected in their moral agency, integrity and the exercise of freedom of conscience. This submission concerns a substantial revision to the Canadian Medical Association's Code of Ethics proposed by the CMA Code of Ethics Revision Task Force, parts of which concern the dignity, moral agency integrity and freedom of conscience of physicians. The narrow focus of the submission should not be understood to imply a lack of appreciation for what the Task Force has accomplished, nor disagreement with aspects of the Revision that the submission does not address.

Praise for the 2018 Revision

I.2    The Project applauds the 2018 Revision's assertion that "the patient-physician relationship is at the heart of medical practice" and is a reciprocal relationship entailing recognition "that the physician and patient are each moral agents." (App. "A" Ref 037) Likewise, the Project strongly endorses a number of other elements of the Revision: the emphasis on moral courage (App. "A" Ref 020) the stress on what ethical and professional practice "ought to be"(App. "A" Ref 004-005), insistence that physicians must practise "with integrity"(App. "A" Ref. 027), and the expectation that physicians will "respect and promote the inherent dignity and equal worth of all persons and refuse to participate in or support practices that violate basic human rights." (App. "A" Ref 024) The Project recommends reinforcing these admirable elements in the 2018 Revision by retaining clause 7 of the 2004 Code: "Resist any influence or interference that could undermine your professional integrity." (App. "A" Ref 029).

I.3    The Project also commends the Task Force for proposing a new clause that reinforces the obligation to act according to one's conscience, bearing in mind one's responsibilities to colleagues and patients:

C2. Act according to your conscience, and respect differences of conscience among your colleagues; always respond to a patient's medical request regardless of your moral commitments. (App. "A" Ref 049)

Problematic elements

I.4    These important and praiseworthy elements of the 2018 Revision are unfortunately undermined by a change to the protection of conscience provision in the current (2004) Code:

2004 Code
12. Inform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants.

2018 Revision
C3. Inform the patient when your deeply held values may influence the recommendation, provision or practice of any medical procedure or intervention that the patient needs or requests, but never abandon the patient. (App. "A" Ref 050)The duty of non-abandonment requires providing the patient with complete information on all clinical options available and, when necessary, a formal referral or a direct transfer of care. It also includes the transfer of the patient's records when requested by the patient. [emphasis added](App. "A" Ref 051)

I.5    The text, as written, asserts an obligation to provide information necessary to enable informed decision-making. This is not problematic. However, it imposes an additional obligation to refer and initiate a transfer of care to facilitate provision of a morally contested service.

I.6    This is not optional; it is not a case of providing information or making a referral. Whatever the intentions of the Task Force, the text states that referral or direct transfer must be provided "when necessary" — whatever that might mean. For many objecting physicians, this is unacceptable because they consider referral or initiating a transfer of care makes them complicit in the perceived wrongdoing that follows, and that it can never be "necessary" to do what they believe to be wrong.

I.7    If "when necessary" means "when required by law or regulation," this is equally unacceptable to many objecting physicians, as evidenced by the ongoing constitutional challenge to the demand for effective referral by the College of Physicians and Surgeons of Ontario.  Their position is that "ethics trumps law," a legitimate ethical stance acknowledged by the CMA.1 

I.8    In any case, the claim that the duty of non-abandonment imposes an obligation upon physicians to refer or initiate a direct transfer of care to facilitate procedures to which they object for reasons of conscience is tendentious.  It is also inconsistent with the 2018 Revision's emphasis on the moral agency and integrity of physicians. 2018 Revision C3, as currently written, codifies an unacceptable form of moral partisanship that has been explicitly rejected by the CMA. It is ethically incoherent, thus incapable of sustaining trust in the profession. It contradicts CMA norms and policies, and - contrary to the intentions of the Task Force - would undermine the dignity, moral agency, integrity and freedom of conscience of physicians.

The codification of moral partisanship

I.9    2018 Revision C3 requires all physicians to facilitate a procedure or intervention by making a formal or informal referral, or by initiating a direct transfer of care, even if they believe that the procedure is morally unacceptable: sex selective abortion, for example.

I.10    Some physicians who object to sex selective abortion may be willing to refer patients or initiate a transfer of care because they believe that doing so absolves them of moral responsibility for the procedure. Others, however, would refuse, because they believe that referral makes them complicit in wrongdoing. Even academics who demand that objecting physicians be forced to refer for abortion admit this is a rationally defensible position.

I.11    In 2006, Carolyn McLeod admitted that referral is not a compromise. Being forced to refer, she said, would put objecting physicians "at serious risk of losing moral integrity through self-betrayal," with profound consequences for their "psychological health and agency."2 However, by 2008, concerned that "the pro-life side" was winning the intellectual argument on mandatory referral,3 she proposed a new argument "to ensure that [physicians] do not get protections for refusal to refer."4 She again admitted that requiring effective referral was not a compromise.5 She nonetheless insisted that objecting physicians should be forced to refer for abortion because, she said, "abortions are morally permissible."6 Objecting physicians "ought not to be able to follow their consciences when the voice of their conscience misleads them."7

I.12    Five years later, she and Lori Kantymir insisted that "referrals are not appropriate when the objection itself is morally justified": that "conscientious objections by healthcare professionals that are morally justified should not be followed up by referrals."8 However, they insisted upon compulsory referral for most abortions because - in their view - most abortions are morally acceptable9 - though not sex-selective abortions.10 At this stage, however, they were also supporting a model conscientious objection policy co-authored by McLeod11 that replaced the need for moral justification with the criterion of public funding.12

I.13    McLeod's obvious moral partisanship in advocating compulsory referral (except, perhaps, for sex selective abortion) is to be expected in politics and is not out of place in academic discourse, but it does not belong in the CMA Code of Ethics. The current wording of 2018 Revision C3 writes such partisanship into the Code.  It favours the moral viewpoint of physicians willing to refer, and discounts that of physicians who believe that referral is morally objectionable. The CMA has denounced this approach as illicitly discriminatory (Part III.18), a view the Project shares.

Ethical incoherence

I.14    Moral partisanship is not diminished by the caveat, "when necessary." 2018 Revision C3 deals strictly with ethical/moral conflicts, not with clinical decisions about whether a particular intervention is functionally necessary to accomplish a specific therapeutic goal. The Revision asserts that some physicians, must, "when necessary," do what they believe to be wrong.

I.15    It is simply incoherent to include an ethical obligation to do what one believes to be unethical in a code of ethics (II.10-11). An expectation that some physicians must do what they believe to be wrong - even if only "when necessary" - is would naturally undermine trust in the medical profession, an outcome completely at odds with the goals of the 2018 Revision13 and the intentions of the CMA.14 This can be better appreciated by considering the demand in other contexts:

• that lawyers who believe bribery is wrong must, "when necessary," arrange for someone to be bribed to secure some benefit for a client;

• that state officials who believe that torture is wrong must, "when necessary," arrange for someone to be tortured to ensure public safety;

• that people who believe that lying is wrong must, "when necessary," lie to preserve the reputation of a political party, church, school, profession or other institution.

What is "necessary"?

I.16    Moreover, when necessity is defined by the 'ethics of the profession,' or by law or public policy even in democratic states, the idea that professionalism involves a duty to do what one believes to be wrong "when necessary" is not only contentious, but decidedly ill-advised. This is demonstrated by sorry history of physician support and complicity in laws like the Alberta Sterilization Act, which Emily Murphy praised as a compassionate way to deal with "the human wreckage . . . dumped from foreign lands" in Canada.15

I.17     The Canadian Medical Association supported the thinking behind such legislation.16,17 It welcomed an address on "The Quality of the Human Stock" at its annual banquet in 193418 and published a favourable account of the operation of the Alberta Eugenics Board.19 Two years later the Canadian Medical Association Journal featured a lengthy essay on the superiority of the Aryan/Nordic Race20 by a strong public supporter of Nazi racial policies.21

I.18     Alberta physicians eventually sterilized 2,822 people upon the authorization of the Alberta Eugenics Board.22 When the Sterilization Act and Board were abolished in 1972, the government of the day denounced the program that had operated for 44 years - with the cooperation of the medical establishment - as a "reprehensible and intolerable" violation of "fundamental human rights."23

I.19     In 1996, the Alberta Court of Queens Bench found that the Eugenics Board "routinely operated outside the law," and that, as late as the early 1960's, physicians cooperating with the Board not only performed sterilizations not authorized by the statute, but performed medically unnecessary appendectomies, castrations, hysterectomies, oophorectomies and biopsies of testicular tissue, behaviour the judge described as "unlawful, offensive and outrageous."24

I.20    Nonetheless, Dr. Margaret Thompson, a former Eugenics Board member who was excoriated by the trial judge for, among other things, encouraging the use of trainees with Down Syndrome as "medical guinea pigs," had "no regrets" about her activities as a board member. Asserting that ethics "never stands still," she defended her decisions as "a very reasonable approach to a very difficult problem."25  It should be noted that Dr. Thompson was not an outlier in the medical community. She had a particularly distinguished career,26 and was eulogized in 2014 as "one of Canada's most respected geneticists, a pioneer in genetic counselling and a devoted researcher into the causes of certain diseases."27

I.21 It is very doubtful that any of the physicians who played a prominent role in giving effect to the Eugenics Board's decisions believed that they were doing anything wrong. On the contrary, as Dr. Thompson's explanation indicates, it is very likely that they thought it "necessary," and that they were "moving with the times" — a notion typically associated with revisions to the CMA Code of Ethics.28,29

I.22 However, the pages of the CMAJ reveal that, in trying to move with the times, one can become a prisoner of one's own time, shackled by established ideas about what is "necessary," for example. Consistent with the Task Force's insight that the workplace must not only be physically and psychologically safe, but "conducive to challenging the status quo," (2018 Revision C43, App A, Ref 120) the Project recommends that the requirement that physicians do what they believe to be wrong "when necessary" be struck from the Revision.

Contradiction of CMA norms and policies

I.23    Further, the CMA has, for almost fifty years, insisted that physicians must not be forced to do what they believe to be wrong by being compelled to facilitate procedures or interventions to which they object for reasons of conscience (Part II). The current wording of 2018 Revision C3 reverses that position, bringing into question CMA assurances to objecting physicians, and undermining resolutions passed by CMA General Councils (Parts II.4, III.3-4, III.11-12).

I.24    Finally, the requirement for referral or physician-initiated transfer of care contradicts a foundational CMA statement concerning freedom of conscience (Part III.14-21), as well as the revised CMA policy, Medical Assistance in Dying (Part IV).

Servitude, not service

I.25    As the Revision states , physicians, like patients, are moral agents(App. "A" Ref 037).  Neither physicians nor patients act improperly when they insist that the conscience that guides their own actions must be their own and not someone else's. If patients' convictions are sufficient to justify their decisions to seek a particular service, it does not follow that their convictions are sufficient to justify forcing physicians to assist them. A right to choose for oneself is not equivalent to a right to coerce others. The practice of medicine entails service, not servitude.

I.26    In R v Morgentaler, Justice Bertha 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'."30

I.27    To use physicians as means to ends they reject as morally unacceptable demands the submission of intellect, will and conscience, reducing them to the status of things, to tools to be used by others, to a form of servitude that cannot be reconciled with principles of equality.  Following Justice Wilson, it is an assault on human dignity that deprives physicians of their essential humanity.31 It is impossible to reconcile such a policy with any acceptable notion of professionalism.

Seeking reconciliation

I.28    The current text of 2018 Revision C3 is unsatisfactory, but it can be rewritten to reconcile it with the CMA's longstanding commitment to physician freedom of conscience, and with the obvious desire of the Task Force to emphasize the moral agency and integrity of physicians in a revised Code of Ethics. Moreover, this can be done by drawing almost exclusively on CMA sources, so that a rewritten and satisfactory text remains almost entirely in the CMA's own words. The balance of this submission seeks this reconciliation.

---

Notes

1.  Dr. Jeff Blackmer, CMA's Vice President of Medical Professionalism, considering CMA policy options if euthanasia and assisted suicide were legalized, said, "One of the options would have been to say our policy is unchanged. We could say ethics trumps the law."  Kirkey S. Canadian doctors seek freedom to choose whether to offer medical aid in dying. Montreal Gazette [Internet] 2014 Aug 20 [cited 2022 Oct 08].

2.  McLeod C. Demanding Referral in the Wake of Conscientious Objection to Abortion. In JC Cohen JC, Keelan JE editors. Comparative Program on Health Law and Society, Lupina Foundation Working Papers Series 2004–2005. Toronto: University of Toronto, Munk Centre for International Studies [Internet] 2006 [cited 2018 Mar 18]) 130-138 at 132 (emphasis added).

3.  Carolyn McLeod, "Referral in the Wake of Conscientious Objection to Abortion." Hypatia 2008; 23(4):30-47 at 30. doi: 10.1111/j.1527-2001.2008.tb01432.x.

4.  Ibid, 31.

5.  Ibid, 32–35, 42.

6.  Ibid, 42

7.  Ibid, 40.

8.  Kantymir L, Carolyn McLeod C. Justification for Conscience Exemptions in Health Care. Bioethics 2014; 28(1):16-23 at 18 [emphasis added]. doi: 10.1111/bioe.12055.

9.  Ibid, (noting that a pro-life panel might excuse someone from providing abortion "on the grounds that abortions are immoral, which is (arguably) false, at least about most abortions" at p. 22).

10.  Ibid, (arguing it would be unfair to deny exemption to providing sex selective abortion, at p. 21).

11.  Downie J, McLeod C, Shaw J. Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons. Health L Rev 2013; 21(3):28-32.

12.  "Legally permissible and publicly funded health services" is the term used, but "legally permissible" is superfluous because there can be no duty to do something illegal, and illegal health services would not be publicly funded. The policy cites physicians' fiduciary obligations, but those pertain to all health services, many of which are not publicly funded. Since compulsory referral is demanded only for publicly funded services, it is public funding alone that trumps freedom of conscience.

13.  Fostering "patient and public trust,"(App. "A" Ref 002) "the trustworthiness of the profession" (App. "A" Ref 015) "reciprocal trust" (App. "A" Ref 037-038).

14.  Speaking last year, the Chair of the CMA Medical Ethics Committee warned that this is "a critical juncture for the medical profession" because "the public is losing faith . . . losing trust in physicians." He was optimistic that "being ethical, being professional" and the planned revision of the Code of Ethics would help restore public trust in the profession. Canadian Medical Association, Medical professionalism - New Code of Ethics. YouTube [Internet] 2017 Aug 21 [cited 2018 Mar 17](10:20 - 11:26).

15.   She noted that surgically sterilizing a male took only about the same time needed to execute "unhappy degenerates" who broke the law because of their hereditary defects. Murphy E. Sterilization of the Insane. The Vancouver Sun. 1932 Sep;  Heritage Community Foundation.  Alberta On-Line Encyclopedia [Internet] The Famous Five: Heroes for Today.[cited 2018 Mar 29].

16.  The Problem of the Feebleminded. Can Med Assoc J [Internet] 1923 Jun [cited 2018 Mar 24];13(6): 444-445.

17.  Eugenics and the Medical Profession. Can Med Assoc J [Internet] 1927 Dec [cited 2018 Mar 24]; 17(12):1526-1528.

18.  Wallace RG. The Quality of the Human Stock. Can Med Assoc J (Special Article) [Internet] 1934 Oct [cited 2018 Mar 24]; 31(4):427-430.

19.  Association notes - The Sixty-fifth Annual Meeting of the Canadian Medical Association (June, 1934). Can Med Assoc J [Internet] 1934 Oct [cited 2018 Mar 24] 31(4):433-436 at 435.

20.  Campbell CG. The Lessons of Racial History. Can Med Assoc J (Special Article) [Internet] 1936 Jul [cited 2018 Mar 24]; 35(1):80-84.

21.  The year before the article appeared in the CMAJ, Campbell had presented papers at the International Congress for the Scientific Investigation of Population Problems in Berlin, where he asserted that "Germany has set a pattern which other nations must follow" and toasted Adolph Hitler as "a great leader." See Praise for the Nazis. Time. 1935 Sep 9; at 21. Quoted in Lombardo PA. "The American Breed": Nazi Eugenics and the Origins of the Pioneer Fund. Albany Law Review [Internet] 2002 [cited 2018 Mar 26] 65(3):743-830 at 770, 773-774.

22.  McLaren A. Our Own Master Race: Eugenics in Canada, 1885-1945. Toronto: McClelland & Stewart, 1990 at 159, cited in Caufield T, Robertson G. Eugenic Policies in Alberta: From the Systematic to the Systemic. Alberta Law Review [Internet] 1996 [cited 2018 Mar 26];35(1):59-79 at 61.

23.  Reports of the Debates of the 17th Legislative Assembly of Alberta, 1st Session [Internet]1972 May 31 [cited 2018 Mar 25]; 3945.

24.  Muir v. Alberta, 1996 CanLII 7287 (AB QB) [Internet] [cited 2018 Mar24]. The judge referred specifically to the evidence of geneticist Dr. Margaret Thompson, who was active on the Board from 1960 to 1962, during which period illegal sterilizations were authorized and unnecessary appendectomies were performed: "Dr. Thompson's evidence demonstrates that the operations of the Board, initiated on a purported scientific rationale, degenerated into unscientific practices. The decisions of the Board were not made according to the standards imposed on them by the legislation, but because the members of the Board, like Dr. Thompson, thought that it was socially appropriate to control reproduction of ‘these people.’"

25.  Cairney R. "Democracy was never intended for degenerates": Alberta's flirtation with eugenics comes back to haunt it. CMAJ [Internet] 1996 Sept 15 [cited 2018 Mar 25]; 155(6): 789-792 at 792.

26.  Dr. Thompson was awarded the Order of Canada in 1988 for her pioneering work in medical genetics and genetic counselling. The Canadian College of Medical Geneticists memorializes her in an annual Founders’ Award for Career Achievement as one of seven "visionary men and women" who founded the College in 1976.  Canadian College of Medical Geneticists, 2018 Founders' Award for Career Achievement (Accessed 2022 Oct 08). In 2011, the College authorized the Dr. Margaret Thompson Trainee Award in her honour.  Canadian College of Medical Geneticists, Dr. Margaret Thompson Trainee Award (Accessed 2022 -25).

27.  Csillag R. Gifted scientist Margaret Thompson had a lasting impact on health care. Globe and Mail [Internet] 2014 Dec 14 [updated 2017 Mar 25] [cited 2018 Mar 25].

28.  In 1970, with "a new spirit of daring . . . alight in the land," incoming President Dr. D.L. Kippen, observed, "What we’re seeing now is a more liberal attitude in society in general, and the doctors are moving with the times." The Physician and the Liberal Society: Understanding in Winnipeg. Can Med Assoc J [Internet] 1970 July 18 [cited 2018 Mar 14];103(2): 193, 195, 198-201, 204-209, 212-219 at 193.

29.  Canadian Medical Association. Medical professionalism - New Code of Ethics. YouTube [Internet] 2017 Aug 21 [cited 2018 Mar 17]; (Dr. Atul Kapur [3:11-4:26]; Dr. Tim Holland [4:34-5:17].

30.  R. v. Morgentaler (1988)1 SCR 30 [Internet] [cited 2018 Mar 18] at 179.

31.  Murphy S, Genuis SJ. Freedom of Conscience in Health Care: Distinctions and Limits.  Bioethical Inquiry 2013 [Internet] [cited 2018 Mar 18] 10:347.

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