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III.    CMA on physician freedom of conscience

1988-2012: from abortion to euthanasia

III.1    In 1988, after the Supreme Court of Canada struck down all legal restrictions on abortion, the CMA revisited its policies on the procedure. The protection of conscience provision in the Code of Ethics remained unchanged, and the Association stressed that there should be no discrimination against objecting physicians, "particularly for doctors training in obstetrics and gynecology, and anesthesia."1

III.2    While this reaffirmed the CMA's commitment to protect physician freedom of conscience, it does not appear that the foundation for the commitment was explored or developed over the next 25 years, even in the face of increasingly strident claims that ultimately led to a recommendation that objecting physicians should be forced to refer patients for euthanasia.2

2012-2014: 'neutrality' and conscience

III.3    This issue suddenly came to the fore in 2012 when a ruling by a British Columbia Supreme Court judge struck down the prohibition of physician assisted suicide and euthanasia.3 When the CMA Annual General Council convened in August, 2013, an appeal of the Carter decision was in progress, and a euthanasia bill had been introduced in the Quebec legislature. Council proceedings reflected "deep divisions within the medical community."4 The Council did, however, resolve to support "the right of any physician to exercise conscientious objection when faced with a request for medical aid in dying." (DM 5-22)5

III.4    CMA officials spent much of 2014 studying euthanasia and assisted suicide, and in August presented the General Council with a resolution affirming CMA support for both physicians unwilling to participate in the procedures, and those willing to do so, should they be legalized.6 This was explained by CMA officials as a commitment to neutrality and support for physician freedom of conscience.7, 8, 9

III.5    However, when the executive revised the policy in December, it formally approved physician assisted suicide and euthanasia as "end of life care" and promised to support patient access to "the full spectrum" of such care, subject only to the law. The policy did not exclude minors, the incompetent or the mentally ill, nor did it indicate that the procedures should be provided only to the terminally ill or those with uncontrollable pain. It referred directly only persons suffering from "incurable diseases."10 The Directors thus formally committed the Association to support euthanasia and assisted suicide not only for competent adults, but for any patient group and for any reason approved by the courts or legislatures.

III.6    From a protection of conscience perspective, the first practical problem with this was that actual support for euthanasia and assisted suicide within the medical profession - to the extent that it had been evaluated at all - was highly volatile. Roughly contemporaneous optimistic estimates suggested that 6% to 29% of physicians were willing to provide the procedures, depending upon the condition of the patient; 63% to 78% would refuse, again dependent upon the condition of the patient. Of physicians willing to consider providing the services, the number dropped by almost 50% in the case of non-terminal illness, and by almost 80% in the case of purely psychological suffering (i.e., in the absence of pain).11 The Association's unconditional support for euthanasia and assisted suicide potentially exposed large number of physicians to demands that could generate serious conflicts of conscience.

III.7    The second problem was that the policy was not neutral.12 By classifying euthanasia and assisted suicide as "end of life care," the CMA executive effectively made participation in euthanasia and assisted suicide normative for the medical profession. Once the Supreme Court of Canada ordered legalization of the procedures,13 the refusal to provide assisted suicide and euthanasia in the circumstances set out in Carter became an exception to professional obligations that had to be justified or excused. This is why, since Carter, public discourse has largely centred on whether or under what circumstances physicians and institutions should be allowed to refuse to provide or participate in homicide and suicide.

III.8    Certainly, the new policy also stated that the CMA supported the right of physicians to "follow their conscience" when deciding whether or not to provide euthanasia, and that physicians "should not be compelled to participate," a broader term that could encompass referral. However, it characterized the protection of conscience provision in the Code of Ethics (2004 paragraph 12) as defending only "physician autonomy," not physician moral agency and personal integrity. In addition, it added a qualifying statement: "However, there should be no undue delay in the provision of end of life care." This could be (and later was) understood to justify limiting freedom of conscience for objecting physicians in order to ensure patient access to the services.

2015: the Carter maelstrom

III.9    Thus, when the Supreme Court ruled in Carter, the CMA was ready to proceed with implementing euthanasia and assisted suicide, but it was quite unprepared mount a cogent, articulate and persuasive defence of physician freedom of conscience. This disadvantage was compounded when the federal government did virtually nothing for five months following the ruling, then called (and lost) an election, and left the CMA other stakeholders scrambling to develop policies responsive to the Carter ruling without any direction as to what changes would be made to the criminal law.

III.10    The result was a policy and regulatory maelstrom that lasted several months. During this time, CMA officials, struggling to develop practice standards and guidelines in response to Carter, were also caught between activists demanding that physicians be compelled to refer for the procedures, and physicians and physician groups, galvanized by the Carter ruling, adamantly opposed to providing or facilitating euthanasia or assisted suicide. Under the circumstances, it is not surprising that there was some waffling by CMA officials on the issue of referral.

III.11    By the time the Annual General Council convened in August, 2015, only about 19% of CMA members believed that physicians should be required to refer patients to someone who would provide euthanasia or assisted suicide. Almost 70% were opposed to the idea. About 31% thought objecting physicians should not be require to do anything, but about 27% believed that they should provide information and support, or refer to a third party who could provide information.

Source: Murphy S. A "uniquely Canadian approach" to freedom of conscience in health care: Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide. App. D2.2.3. Protection of Conscience Project (2016).

III.12    The Council ultimately approved a resolution later adopted by the CMA Board of Directors. It stated that physicians were not obliged to fulfill requests for or participate in euthanasia or assisted suicide, and should not be discriminated against for refusing to do so. It required objecting physicians to provide patients with complete information on "all options," and advise them "how they can access any separate central information, counseling, and referral service."14

III.13    This was a development of the basic framework provided by the Code of Ethics. It was, however, a largely pragmatic response guided by a general notion of "striking a balance" between patient and physician autonomy or rights. It was specific to euthanasia and assisted suicide, and it was unsupported by principled ethical or philosophical rationale. It is unlikely that more than this could have been achieved in the circumstances.

2016: The CMA and "effective referral"

III.14    The first CMA statement addressing the subject of physician freedom of conscience at a foundational level was a 2016 submission to the College of Physicians and Surgeons of Ontario in response to its demand that objecting physicians facilitate euthanasia and assisted suicide by an "effective referral."15 Important elements of this statement were incorporated into the new CMA Medical Assistance in Dying policy and are evident in the 2018 revised draft of the CMA Code of Ethics.

III.15    The first and most important element is the recognition of physicians as moral agents.

It is in fact in a patient's best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement. At a time when some feel that we are seeing increasingly problematic behaviours, and what some view as a crisis in professionalism, medical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.

III.16    The statement does not neglect the interests of patients seeking access to euthanasia and assisted suicide, noting that the CMA wishes to protect physician freedom of conscience "without in any way impeding or delaying patient access." However, it insists that this can be accomplished by adopting a two-pronged strategy: by asking physicians to fulfil "a duty that is widely morally acceptable," yet allows them " to act as moral agents," and by requiring the community to accept its responsibility to ensure access, "rather than placing the burden of finding services solely on individual physicians."

III.17    The third significant point is recognition that the central concern of objecting physicians is their individual moral responsibility to avoid complicity in perceived wrongdoing. This is sometimes misconstrued or misrepresented as a desire to control the conduct of their patients, and it is too often passed over because it can be a painful reminder of the essential point of disagreement between objecting physicians and non-objecting colleagues.

III.18    Fourth, the statement recognizes that the exercise of freedom of conscience is a fundamental freedom for everyone, not just for those whose moral judgement conforms to a dominant viewpoint, or to one's own. This is implied in its discussion of effective referral. Some physicians who refuse to provide assisted suicide or euthanasia have no objection to referring a patient to a colleague willing to provide the service. Others find referral "categorically morally unacceptable" because they believe that referral makes them complicit in grave wrongdoing. The statement characterizes a demand for "effective referral" as illicit discrimination, not a solution, because it "respects the conscience of some, but not others."

It is the CMA's strongly held position that there is no legitimate justification to respect one notion of conscience . . . the CMA [seeks] to articulate a duty that achieves an ethical balance between conscientious objection and patient access in a way that respects differences of conscience. It is the CMA's position that the only way to authentically respect conscience is to respect differences of conscience.

III.19    Finally, citing the Supreme Court of Canada, the statement also emphasizes the fiduciary nature of the patient-physician relationship: the physician's obligation "to protect and further their patients' best interests." However, it adds that physicians' fiduciary obligations do not "in any way" entail an obligation to violate their own moral integrity.

III.20    The Project has strongly supported this position for years. However, something more must be added to this.  The dominant view is that "the interests" or "best interests" of patients are determined by the patients themselves - not by physicians - even if physicians assist them in deciding what those interests are. Once patients have identified their interests, the argument goes, physicians have a fiduciary duty to serve those interests, by, for example, referring a patient for a desired procedure. This is erroneous.

III.21     Granted that patients are entitled to determine what they believe to be in their best interests, physicians who disagree have no obligation to serve those interests. As a matter of law, a fiduciary is not a servant.16 Fiduciaries have a duty not to act under dictation, even the dictation of a beneficiary,17 and must exercise their own judgement.18 The law does not allow beneficiaries (patients) to turn fiduciaries (physicians) into "puppets."19 These are important legal principles that apply to all aspects of clinical and professional judgement, not just to the exercise of freedom of conscience.

Conclusion

III.22    The CMA’s support for physician freedom of conscience has been expressed by resolutions at successive General Councils. In addition, available statistics indicate that the great majority of CMA members have been opposed to compelling objecting physicians to refer for morally contested services, but seem to agree that there is an obligation to provide information and to help patients contact other physicians or health care providers.

III.23    Like the 2018 Revision, the CMA's first statement addressing physician freedom of conscience at a foundational level emphasizes physician moral agency and integrity. However, it strongly denounces the imposition of effective referral, describing it as illicitly discriminatory. This ought to preclude acceptance of the proposal for referral and physician-initiated transfer of care in the current text of 2018 Revision C3.

Notes

1.  Canadian Medical Association. Policy: Induced abortion. [Internet] 1988 Dec 15 [cited 2018 Mar 15].

2.  Schuklenk U, van Delden JJM, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making. [Internet] Royal Society of Canada. 2011 Nov. 117 p. [cited 2018 Mar 25] at 69, 101.

3.  Carter v. Canada (Attorney General) 2012 BCSC 886 [Internet] [cited 2018 Mar 15].

4.  Eggertson L. CMA delegates defer call for national discussion of medically assisted death. CMAJ [Internet] 2013 Sep 17 [cited 2018 Mar 15];185(13): E623-624.

5.  Canadian Medical Association. Resolutions Adopted,146th Annual Meeting of the Canadian Medical Association (Calgary, AB) [Internet]. 2013 Aug 19-21 [cited 2022 Oct 8].

6.  Canadian Medical Association. 147th General Council Delegates' Motions [Internet]. End-of-Life Care: Motion DM 5-6 [cited 2022 Oct 8].

7.  Kirkey S. Canadian doctors seek freedom to choose whether to offer medical aid in dying. Montreal Gazette [Internet] 2014 Aug 20 [cited 2022 Oct08].

8.  Swan M. Medical association vows to protect conscience rights.  The Catholic Register [Internet]. 2014 Aug 27 [cited 2018 Mar 15].

9.  McFadden J. Yk docs bring motions on doctor-assisted death: Canadian law on euthanasia could be overturned by next month. Northern News Services [Internet]. 2014 Sep 8 [cited 2018 Mar 29].

10.  Canadian Medical Association. Policy: Euthanasia and Assisted Death [Internet]. Update 2014 [cited 2022 Oct 08].

11.  Murphy S. A "uniquely Canadian approach" to freedom of conscience: Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide." Appendix "D": Canadian Medical Association on euthanasia and assisted suicide. D2.1: Surveys on support for euthanasia/assisted suicide.

12.  Contrast the position of the CMA with that of the Royal New Zealand College of General Practitioners, which explicitly declined to endorse euthanasia or assisted suicide, while recognizing that individual practitioners might participate if they wished to do so. The Royal New Zealand College of General Practitioners. Submission to the Justice Committee re: End of Life Choice Bill [Internet]. 2018 Mar 6 [cited 2022 Oct 08].

13.  Carter v. Canada (Attorney General), 2015 SCC 5  [Internet] [cited 2018 Mar 14]. 

14.  Canadian Medical Association. Principles-based Recommendations for a Canadian Approach to Assisted Dying. In: CMA Submission to the Federal External Panel on Options for a Legislative Response to Carter vs. Canada (Federal External Panel) [Internet]. 2015 Oct 19
[cited 2022 Oct 08]. A2-1 to A2-6 at A2-1, Foundational Principle 2.

15.  Canadian Medical Association. Submission to the College of Physicians and Surgeons of Ontario: Consultation on CPSO Interim Guidance on Physician-Assisted Death. [Internet] 2016 Jan 13.

16.  Canadian Aero Service Ltd. v. O'Malley, [1974] SCR 592, 1973 CanLII 23 (SCC)  [Internet][cited 2018 Mar 29] ("their positions . . .charged them with initiatives and with responsibilities far removed from the obedient role of servants. It follows that O'Malley and Zarzycki stood in a fiduciary relationship to Canaero . . ." at 606).

17.  United Kingdom, Law Commission, Report No. 350. Fiduciary Duties of Investment Intermediaries. Williams Lea Group for HM Stationery Office. [Internet] 2014 [cited 2022 Oct 08]  at para 3.53, note 107, citing Selby v Bowie (1863) 8 LT 372; Re Brockbank [1948] Ch 206.

18.  Ibid, notes 109–110, citing Thomas G. Thomas on Powers. 2nd ed. Oxford: Oxford University Press; 2012, at para 10.60; Finn P. Fiduciary Obligations. 1st ed. Sydney: Law Book Co; 1977, at para 44; Mowbray J et al. Lewin on Trusts. 18th ed. London: Sweet & Maxwell; 2007, at para 29-89.

19.  Ibid, para 3.51 note 105, quoting Finn P. supra note 18 at para 42.

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