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 years.

The first CMA "conscience clause"

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:

Personal morality
15. An 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 surgical procedure."2

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 physician.

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.

1977-78: The first referral 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).

No ethical obligation to do what is believed to be wrong

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

2006-2008: reaffirmation of the policy

II.12    In a guest 2006 editorial in the Canadian Medical Association Journal19 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, 24

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

1978-2018: forty years later, no ethical consensus

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 incoherent proposition.

1978-2018: forty years later, no evidence

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 physician.28

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

Conclusion

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.

---

Notes

1.  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].

2.  The 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.

3.  Canadian Medical Association 104th Annual Meeting, Halifax, Nova Scotia.  Can Med Assoc J [Internet] 1971 Jun 19 [cited 2018 Mar 14]; 104(12): 1132-1134.

4.  Waring G. Report from Ottawa. Can Med Assoc J [Internet] 1967 Nov 11 [cited 2018 Mar 14]; 97(20):1233.

5.  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. 1976 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 14];118(2):175, 206.

11.  Wilson RG. Code of 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.

15.  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].

16.  World Medical Association Medical Ethics Manual [Internet] 3rd Edition. 2015  [cited 2018 Mar 14]

17.  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. The position of the Canadian Psychiatric Association. Can J Psychiatry 1980 Aug [cited 2022 Oct 08];25(5):432-8. doi: 10.1177/070674378002500512.

19.  Rodgers S, Downie J. Abortion: Ensuring Access. CMAJ [Internet] 2006 July 4 [cited 2018 Mar 14];175(1):9. doi: 10.1503/cmaj.060548.

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. Clarification 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.

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].

23.  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 Sep 11.

25.  Borsellino M. 10 questions with CMA's ethics champion Dr. Bonnie Cham. Medical Post 2008 Sep 25; Questions 6, 9.

26.   Answering 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. Doctor's faith under scrutiny: Barrie physician won't offer the pill, could lose his licence. The Barrie Examiner. 2002 Feb 21 [cited 2018 Mar 29].

27.  College of Physicians and Surgeons of British Columbia. Disciplinary 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.

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