Submission to the Canadian Medical Association
Re: 2018 Revision of the CMA Code of Ethics
2 April, 2018
I. Seeking Reconciliation
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
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)
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:
Inform your patient when your personal values would influence the
recommendation or practice of any medical procedure that the patient
needs or wants.
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.
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,
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
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
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
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
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
• 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.
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
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
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,
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).
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
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.
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."
Canadian doctors want freedom to choose whether to help terminal patients
die: CMA to revisit issue of doctor-assisted death after delegates pass
motion supporting physician's right to 'follow their conscience'.
canada.com [Internet] 2014 Aug 19 [cited 2018 Mar 24].
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
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.
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
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].
Problem of the Feebleminded. Can Med Assoc J [Internet] 1923 Jun
[cited 2018 Mar 24];13(6): 444-445.
and the Medical Profession. Can Med Assoc J [Internet] 1927 Dec
[cited 2018 Mar 24]; 17(12):1526-1528.
18. Wallace RG.
Quality of the Human Stock. Can Med Assoc J (Special Article)
[Internet] 1934 Oct [cited 2018 Mar 24]; 31(4):427-430.
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.
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.
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
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.
Reports of the Debates of the 17th Legislative Assembly of Alberta, 1st
Session [Internet]1972 May 31 [cited 2018 Mar 25]; 3945.
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
2018-03-25). In 2011, the College authorized the Dr. Margaret Thompson
Trainee Award in her honour. Canadian College of Medical
Dr. Margaret Thompson Trainee Award (Accessed 2018-03-25).
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."
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].
R. v. Morgentaler (1988)1 SCR 30 [Internet] [cited 2018 Mar 18]
31. Murphy S, Genuis SJ.
Conscience in Health Care: Distinctions and Limits. Bioethical
Inquiry 2013 [Internet] [cited 2018 Mar 18] 10:347.