Submission to the Canadian Medical Association
Re: 2018 Revision of the CMA Code of Ethics
2 April, 2018
II. CMA against mandatory referral
II.1 The demand for referral or
physician-initiated transfer of care in 2018 Revision C3 reverses the CMA's longstanding
position that it is unacceptable to compel physicians to make
referrals for procedures to which they object for reasons of
conscience. This position has been maintained for almost fifty
II.2 In 1970 the CMA adopted a major
revision of its Code of Ethics. It included the
following statement, obviously made necessary by the reform of the
abortion law the year before:
ethical physician will, when his personal morality prevents him from
recommending some form of therapy which might benefit the patient,
acquaint the patient with these factors.1
II.3 Abortion was not mentioned, however,
because the ethics committee believed abortion was "like any other
II.4 The following year the CMA General Council
declared that abortion could be justified on "non-medical social
grounds." It approved nine further resolutions concerning abortion,
two of particular significance to this submission:
4. That faced with a request
for an abortion, a physician whose moral or religious beliefs
prevent him from recommending and/or performing this procedure
should so inform the patient so that she may consult another
7. That physicians or other
health personnel should not be required to participate in the
termination of a pregnancy; and that a patient should not be forced
to have a pregnancy terminated.3
II.5 Immediately following liberalization of
the abortion law, the number of abortions rose from about 300 in 11
years4 to over 11,000 in one
year,5 reflecting the difference
between therapeutic abortions performed to preserve the life of the
mother and elective abortions provided for non-medical reasons.6
Dramatic yearly increases in abortion rates continued for a decade.5,7,8
The broadened grounds for abortion and continuing increases in the
abortion rate increased the likelihood of conscientious objection to
the procedure and of conflict between patients and physicians. It
also brought raging controversy.
II.6 At the General Council in 1977, the ethics
committee recommended that the protection of conscience provision be
amended by adding a requirement that an objecting physician should
advise patients of their right to seek another opinion. This was met
with a counter-proposal from the floor that they should be required
to "advise the patient of other sources of assistance."9
II.7 In support of the counter-proposal it was
argued that "compassion is the basis of ethics," of professionalism
and of medical practice, and that the profession has a
responsibility to patients "who should not be abandoned in any
regard." Hence, a physician who disagrees with "a particular form of
therapy" must not "abandon" the patient.9
II.8 The amendment was adopted, and a serious
conflict erupted almost immediately. It was widely
interpreted to mean that objecting physicians were obliged to refer
for abortion, notwithstanding the assurance of the Director of
Communications to the contrary.10 The General
Secretary defended the change on the grounds that physicians must
not "abandon the patient or impede her from obtaining help from
other sources of assistance.11 The accusation of
"abandonment" was strenuously rejected as at least an exaggeration12 An objecting physician
insisted that "[n]o patient has the right to anything other than
what a physician can in his conscience do," and protested that it
was "intolerable that the CMA is telling me I may not follow my
conscience in this most serious matter."13 Even
physicians who appear to have been willing to provide or refer for
abortions feared that their objecting colleagues would be pressured
to become morally complicit in what they considered to be murder.14
II.9 After a year of controversy, the 1977
amendment was struck out and the previous wording restored.15
Apart from minor editorial changes and renumbering, the policy has
remained intact since that time. This is the policy 2018 Revision C3
proposes to change (I.4).
II.10 Dr. John R. Williams was Director of
Ethics for the World Medical Association from 2003 to 2006 and the
author of the World Medical Association Medical Ethics Manual.16
In 2000, when he was CMA Director of Ethics, he advised the Project
Administrator that the Association did not require objecting
physicians to refer for abortion. He explained that the CMA had once
had a policy to that effect, but had dropped it because there was
"no ethical consensus to support it." This was clearly a brief
reference to the short-lived 1977 revision of the Code of Ethics.
II.11 Two years later, speaking of physicians
who decline to provide or to refer for contraceptives for religious
reasons, Dr. Williams pithily expressed the ethical basis for the
CMA position. He said, "[They're] under no obligation to do
something that they feel is wrong."17 Similarly,
a 2003 annotation of the CMA Code of Ethics for the Canadian
Psychiatric Association, commenting on the protection of conscience
provision, stated the obvious: "A code of ethics can never
require someone to carry out what he believes to be an immoral act."18
II.12 In a guest 2006 editorial in the Canadian Medical Association
and in a response to criticism of the editorial,20
two law professors asserted that objecting physicians have an
obligation to refer patients for abortion. Dr. Jeff Blackmer, then
CMA Executive Director of Ethics, reaffirmed Association policy that
referral was not required.21
II.13 Two years later, the Ontario Human Rights
Commission (OHRC) tried to convince the College of Physicians and
Surgeons of Ontario to suppress physician freedom of conscience and
religion because "doctors, as providers of services that are not
religious in nature, must essentially 'check their personal views at
the door' in providing medical care."22
II.14 The College produced a draft document to
that effect, but the 25,000 member Ontario Medical Association asked
that the document be withdrawn, stating, "We believe that it should
never be professional misconduct for an Ontarian physician to act in
accordance with his or her religious or moral beliefs."23,
II.15 A generally hostile response forced the
College to delete the most objectionable language in the draft
policy, which became Physicians and the Ontario Human Rights Code.
Dr. Bonnie Cham, Chair of the CMA Ethics Committee, reaffirmed the
Association's support for "the identifiable minority" of physicians
who do not agree with abortion, and observed that there is still "a
minority who would not refer" for abortion.25
II.16 It is noteworthy that, in 2018, we hear
the same arguments made in 1978. Advocates of compulsory referral
accuse objecting physicians of patient abandonment, claiming that
refusal to refer impedes or obstructs access and demonstrates lack
of compassion. Physicians who refuse to refer insist that helping a
patient to commit suicide is not compassionate. They argue
that physicians are not guilty of abandonment because a patient,
refusing the treatments they offer, tries to compel them to do what
they cannot do in good conscience.
II.17 In addition, forty years after the first
explosive referral controversy, there is still no ethical consensus
that physicians should be compelled to do what they believe to be
wrong. Nor is there a consensus that a code of ethics can impose an
obligation to do what one believes to be unethical. As the
Canadian Psychiatric Association recognized in 2003, that is an
II.18 Finally, after forty years there appears
to be no empirical evidence that patients have been unable to access
physician services because objecting physicians have been unwilling
to refer or otherwise facilitate morally contested procedures.
II.19 For example: in 2017, the College of
Physicians and Surgeons of Ontario could not produce a single
example of a complaint by a patient unable to access services
because of conscientious objection or refusal to refer in 25 years.26
II.20 According to discipline notices published
by the College of Physicians and Surgeons of British Columbia,
between January, 2006 and November, 2015, 80 physicians were
disciplined as a result of complaints of professional misconduct.
None of these involved conscientious objection by a physician.
The same is true of complaints against 57 physicians disciplined for
professional misconduct between March 2008 and February, 2018.27
II.21 Documents produced by the College of
Physicians and Surgeons of British Columbia in response to an access
to information request by the Project included enquiries received by
the College concerning access to medical services. Over a 27 month period beginning
in December, 2012, the College received 44
enquiries for which information was available. The largest single
group (10 of 44) involved allegations that physicians had refused to
accept patients who were elderly, disabled or had challenging
medical needs. The next largest (7 of 44) alleged that
physicians were refusing to treat injuries sustained in accidents
because they involved ICBC,Worksafe or other insurances claims.
None of the enquiries concerned conscientious objection by a
II.22 The documents disclosed only one
concern about patient abandonment: "The abandonment of patients at
the end of their lives by physicians . . . who refuse to make house
calls and insist that if the patients cannot come to the office they
cannot prescribe for them."29
II.23 There being no new and persuasive
argument in favour of suppressing physician freedom of conscience
with respect to referral, no consensus that it is proper to compel
physicians to do what they believe to be wrong, and no empirical
evidence demonstrating that the suppression of physician freedom of
conscience is necessary to ensure patient access to services, there
is no reason to reverse the CMA's longstanding policy against
compelling physicians to refer for procedures to which they object
for reasons of conscience.
Canadian Medical Association Code of Ethics (1970). Brownell AKW,
Brownwell E. Royal College of Physicians and Surgeons of Canada. 2001 Apr
[Internet] [cited 2018 Mar 14].
Physician and the Liberal Society: Understanding in Winnipeg. Can
Med Assoc J [Internet] 1970 Jul 18 [cited 2018 Mar 14];103(2):193, 195,
198-201, 204-209, 212-219 at 195.
Medical Association 104th Annual Meeting, Halifax, Nova Scotia.
Can Med Assoc J [Internet] 1971 Jun 19 [cited 2018 Mar 14]; 104(12):
4. Waring G.
Report from Ottawa. Can Med Assoc J [Internet] 1967 Nov 11 [cited
2018 Mar 14]; 97(20):1233.
Therapeutic abortion: government figures show big increase in '71.
Can Med Assoc J [Internet] 1972 May 20 [cited 2018 Mar 14];106(10):1131.
The number of abortions increased from 11,152 in 1970 to almost 39,000
in 1971, an increase from a rate of 3.0 to 8.3 per 100 live births.
6. For "non-medical - social, psycho-social
or socioeconomic - reasons." Geekie DA.
Abortion: a review of CMA policy and positions. Can Med Assoc J
[Internet] 1974 Sep 7 [cited 2018 Mar 29]; 111(5):474-477 at 477.
7. By 1975 the rate was 13.8/100. [J.B.S.
"1975 abortion report more informative than its predecessors."
Can Med Assoc J [Internet] 1977 Oct 22 [cited 2018 Mar 29] 117(8): 933.
8. In 1976 there were about 54,500
abortions (14.9/100 live births). See EMR.
advance report on abortion compares statistics with 1975. Can Med
Assoc J [Internet] 1978 Jan 7 [cited 2018 Mar 14]; 118(1): 76.
9. Canadian Medical Association. Proceedings of
the 110th Annual Meeting including the Transactions of the General
Council, Quebec City, Quebec, June 20, 21, 22, 1977, at 86.
10. Geekie D.A.
"Abortion referral and MD emigration: areas of concern and study for
CMA." Can Med Assoc J [Internet] 1978 Jan 21 [cited 2018 Mar
11. Wilson RG.
Ethics: abortion referral (letter). Can Med Assoca J [Internet] 1978
Apr 22 [cited 2018 Mar 14];118(8):896.
12. Firth ST.
Code of Ethics: abortion referral (letter). Can Med Assoc J
[Internet] 1978 Apr 22 [cited 2018 Mar 14];118(8):895.
13. Shea JB.
Code of Ethics: abortion referral (letter). Can Med Assoc J
[Internet] 1978 Apr 22 [cited 2018 Mar 14];118(8):890.
14. Forster JM.
Code of Ethics: abortion referral (letter). Can Med Assoc J
[Internet] 1978 Apr 22 [cited 2018 Mar 17];118(8):888.
Canadian Medical Association Code of Ethics (1978). Brownell AKW,
Brownwell E. Royal College of Physicians and Surgeons of Canada. 2001
Apr [Internet] [cited 2018 Mar 14].
World Medical Association Medical Ethics Manual [Internet] 3rd
Edition. 2015 [cited 2018 Mar 14]
Mackay B. Sign in office
ends clash between MD's beliefs, patients' requests. CMAJ [Internet]
2003 Jan 7 [cited 2018 Mar 14];168(1):78-78-a.
18. Mellor C.
The Canadian Medical Association Code of Ethics Annotated for
Psychiatrists. [Internet] Annotation #4. Canadian Psychiatric
Association. Position Papers, p. 4 of 6. 1978 Oct [cited 2018 Mar 14].
19. Rodgers S, Downie J.
Access. CMAJ [Internet] 2006 July 4 [cited 2018 Mar 14];175(1):9.
20. Rodgers S, Downie J.
Access to abortion:
The authors respond. CMAJ [Internet] 2007 Feb 13 [cited 2018 Mar
14]; 176(4) 494. doi: 10.1503/cmaj.1060202.
21. "However, you should not interfere in any way
with this patient's right to obtain the abortion. At the patient's
request, you should also indicate alternative sources where she might
obtain a referral. This is in keeping with the obligation spelled out in
the CMA policy: 'There should be no delay in the provision of abortion
services.'" Blackmer J.
of the CMA's position on induced abortion. CMAJ [Internet] 2007 Apr
24 [cited 2018 Mar 14]; 176(9):1310. doi: 10.1503/cmaj.1070035.
Available from http://www.cmaj.ca/content/176/9/1310.1.full.
22. Ontario Human Rights Commission.
Submission of the Ontario Human Rights Commission to the College of
Physicians and Surgeons of Ontario Regarding the draft policy,
"Physicians and the Ontario Human Rights Code." [Internet] 2008 Aug
15 [cited 2018 Mar 14].
OMA Urges CPSO to Abandon Draft Policy on Physicians and the Ontario
Human Rights Code. OMA President's Update, 2008 Sep 12;13(23).
24. Ontario Medical Association. OMA Response to
CPSO Draft Policy “Physicians and the Ontario Human Rights Code.” 2008
25. Borsellino M. 10 questions with CMA's ethics
champion Dr. Bonnie Cham. Medical Post 2008 Sep 25; Questions 6, 9.
Physicians Top 5 Legal Questions. [Internet] Canadian Physicians
for Life Conference Series. 2017 [cited 2018 Mar 29] (Video: 11:18-12:35). The
Dawson case mentioned by the speakers occurred in 2002. It concerned
a physician who, for religious reasons, refused to prescribe
contraception to unmarried patients. The patients involved were able
to access contraception from other sources. The College admitted at
that time that it had received no similar complaints concerning
conscientious objection since at least 1992. Canning C.
under scrutiny: Barrie physician won't offer the pill, could lose
his licence. The Barrie Examiner. 2002 Feb 21 [cited 2018 Mar
27. College of Physicians and Surgeons of British
Actions [Internet] [cited 2015 Nov; 2018 Mar 19].
28. Protection of Conscience Project, CPSBC
Disclosure Documents B260-B400.
29. Humer Jennie. College Connector -
Access To Medical Care - Ethical Issues. Message to Ailve McNestry
2014 Feb 5 | 1:34 pm. Protection of Conscience Project CPSBC
Disclosure Document B-168.