Submission to the World Medical Association
Re: WMA International Code of Medical Ethics
Revised Draft for Public Consulation (April, 2021)
22 May, 2021
Full Text
Abstract
This submission responds to the World Medical Association (WMA) request for public feedback about a proposed revision to the International Code of Medical Ethics (ICME). Amendments to Paragraphs 14 (Patient-centred practice) and 27 ("Conscientious objection") are the principal concern.
Paragraph 14 (Patient-centred practice) expresses the central principle of the ICME. Current controversies about freedom of conscience in health care frequently manifest fundamental disagreement about the meaning of terms used here: “care”, "health", "well-being" and "best interest." The Project recommends that "care" be replaced with "recommendations and treatment."
What is thought to be in a patient's "best interest" can be disputed for a variety of legitimate reasons. The ICME should indicate the role and obligations of physicians by specifying that recommendations and treatments must be only those a physician "believes in good faith" to be in a patient’s best interest, "belief" making clear that the judgement is that of the physician, and "good faith" indicating reasonableness, good will and absence of duplicity, prejudice or discrimination.
The proposed text of Paragraph 27 ("Conscientious objection") is anomalous in relation to medical practice because it ignores the role of conscience in medicine and adopts an inadequate and prejudicial analytical framework. It does not attempt or even suggest how to accommodate physician integrity and patient requests when they conflict. It is also anomalous in relation to existing WMA policy and related functionally interdependent paragraphs in the proposed ICME.
The Project proposes an amended Paragraph 27 that
- reflects the role of conscience in medical practice;
- identifies conduct morally relevant to participation in contested procedures;
- recognizing the potential for conflict between physicians and state or other authorities, brings other provisions of the ICME into play;
- includes brief guidance about physician obligations to provide information and ensure patient safety and continuity of care.
The Project recommends that the ICME be supplemented by WMA policy on physician freedom of conscience. It strongly urges that a planned WMA conference should focus on conscience in medical practice, not "conscientious objection."
TABLE OF CONTENTS
I. Introduction
I.1 The Protection of Conscience Project is a non-profit, non-denominational initiative with an international scope that has advocated for freedom of conscience in health care since 1999. The Project does not take a position on the morality or acceptability of contested procedures or services.
I.2 This submission responds to the World Medical Association (WMA) request for public feedback about a proposed revision to the International Code of Medical Ethics (ICME). It expands upon Project recommendations and comments in the WMA public consultation feedback form (Appendix "A").
I.3 The submission is notably informed by the impact of Canada’s legalization of assisted suicide and euthanasia (EAS) on practitioners opposed to the procedures, described in the World Medical Journal (WMJ) by Canadian physicians.1,2 It also draws on WMJ articles (co-authored by the Project Administrator) describing the origins of the Declaration of Geneva and the ICME3 and the relationship between the revised Declaration of Geneva and good medical practice.4
I.4 The following paragraphs from the draft ICME are functionally interdependent and relevant to the issue of conscience in medical practice (headings added here for convenience):
3. Personal and professional integrity
6. Primacy of ethical principles
9. Integrity of medical judgement
14. Patient-centred practice*
27. Conscientious objection*
30. Ethical collaboration
39. Resistance to legal subversion of ethics
40. Collegial support and resistance to oppression
I.5 The recommended amendments to Paragraphs 14* and 27* are the principal concern of this submission. Discussion includes consideration of the functionally interdependent provisions.
I.6 Recommended amendments to Paragraphs 2, 5, 13, 16, 21 and 35 are collateral to the Project’s interest. Reasons for the revisions are given in the WMA public consultation feedback form and do not require further elaboration.
II. Paragraph 14: Patient-centred practice
II.1 Paragraph 14 expresses the central principle of the ICME and underlies the primary duty of physicians (Paragraph 2). The relevant functionally interdependent provisions — including the provision on conscientious objection — encourage, enable and protect patient-centred practice by supporting personal and professional integrity.
II.2 The Project’s first recommendation concerns terminology: that "care" should be replaced with "recommendations and treatment."
II.3 The second recommendation addresses the nature of the physician’s obligation to act in a patient’s "best interest."
Terminology
II.4 The terms "care", "health", "well-being" and "best interest" used in Paragraph 14 are useful only to the extent that there is agreement about their meaning. Current controversies about freedom of conscience in health care frequently manifest fundamental disagreement about the meaning of these terms that cannot be ignored in policy making.
II.5 For example, euthanasia by lethal injection is accurately described as a service, procedure or treatment. To call it a health service, medical procedure or care gives normative force to disputed "metaphysical, philosophical and moral premises that can be rationally contested but cannot be empirically validated," among them "the dogmatic claim that a human being can be better off dead."
In a free and democratic society, it ought to be unacceptable to force physicians to profess this article of faith, or to demonstrate practical adherence to it by killing or facilitating the killing of a patient.5
II.6 However, unreflective use of terms like "care" or "health" may express or invite uncritical acceptance of such underlying premises and beliefs, thus prejudicing discussion, legal reasoning and policy from the outset; polemical use of the terms certainly does. It is important to recognize that this can incidentally or deliberately effect the kind of subversion of medical ethics that Paragraphs 39 and 40 insist physicians must oppose and resist.
II.7 By replacing "care" with "treatment and recommendations" the ICME will recognize the typical and uncontroversial elements of medical practice in a manner less open to polemical misuse in relation to contested services or procedures. The amendment will also make it easier to defend against the kind of ethical, legal and regulatory subversion and oppression contemplated in Paragraphs 39 and 40.
"Best interest"
II.8 Notwithstanding agreement that priority must be given to the patient’s "best interest," what is thought to be in a patient’s "best interest" can be disputed for a variety of legitimate reasons, quite apart from further interpretive difficulties introduced by contested underlying beliefs (II.4– 6). An increasingly persistent claim is that what is in a patient’s best interest should be determined by the patient — not the physician.
Physicians may reasonably disagree. If, despite this, physicians are compelled to further a patient’s request, the concepts of benefit, harm and best interest become irrelevant. All that remains is the demand of the patient, backed by the power of the state to ensure compliance.
This treats physicians as mere technicians or state functionaries, as cogs in a state machine delivering services upon demand, not as responsible moral agents who, like their patients, must form and act upon judgements about benefits and harms. It imposes a form of servitude that is incompatible with human equality, dignity and personal and professional integrity.6
II.9 With respect to professional integrity, grave concern has been expressed that displacing the traditional responsibility of the medical profession to independently "make considered medical determinations based on evidence, unique knowledge and expertise" amounts to "a stunning reversal of the central role of the medical and legal concept of the standard of care."7
II.10 What counts as "best interest" must be determined on a case-by-case basis and cannot be defined by the ICME. However, the ICME should indicate the role and obligations of physicians in making this determination. Here the law on fiduciary obligation is informative. Physicians must assess what is in a patient’s best interest independently and in good faith, using their own judgement, without becoming a "puppet" by taking direction from anyone else, including the patient and state medical regulators. If they thus conclude that doing X is not in a patient's best interest, the law requires them to refuse.8
II.11 The
concept of fiduciary obligation as developed in common law jurisdictions is not readily transposed to civil law jurisdictions, which variously articulate duties of care, loyalty, fidelity and good faith to achieve similar ends.9 It is not clear to what extent either common law or civil law traditions inform the current draft of the ICME. However, it does seem that the requirements for independence and good faith described in II.10 are common to both. This inference is supported by expectations in the European Charter of Medical Ethics10 and Principles of European Medical Ethics.11 Moreover, requirements for independence and good faith are fully consistent with the ICME’s stress on patient priority (Paragraphs 2, 5, 7, 14–19, 21, 28, 31) and professional independence (Paragraphs 3, 6, 9, 25, 27, 39 and 40).
II.12 Hence, in Paragraph 14 the ICME should specify that recommendations and treatments must be only those a physician "believes in good faith" to be in a patient’s best interest,
"belief" making clear that the judgement is that of the physician, and "good faith" indicating reasonableness, good will and absence of duplicity, prejudice or discrimination.
III. Paragraph 27: "Conscientious objection"
III.1 The proposed text of Paragraph 27 is anomalous in relation to medical practice because it ignores the role of conscience in medicine and adopts an inadequate and prejudicial analytical framework limited to "conscientious objection." In so doing it fails to make distinctions that would, if recognized, suggest how both physician integrity and patient access to services can be accommodated. For these reasons it is also anomalous in relation to existing WMA policy and related functionally interdependent paragraphs in the proposed ICME.
Conscience in medicine
III.2 The central role of conscience in medical practice was a prominent concern of the organizers of the WMA and the assemblies that first approved the Declaration of Geneva and ICME.12,13 In reviewing the origins of these documents, the Project Administrator and co-authors affirmed and applied the insight of the WMA founders:
[T]he practice of medicine is an inescapably moral enterprise. Physicians first consider the good of patients, always seeking to do them some kind of good and protect them from evils. Hence, moral or ethical views are intrinsic to the practice of medicine, and every decision concerning treatment is a moral decision, whether or not physicians consciously advert to it. To demand that physicians must not act upon moral beliefs is to demand the impossible, since one cannot practise medicine without reference to moral beliefs. (References omitted)14
III.3 Relevant here is an observation by Dr. Ewan Goligher, a WMA associate member and co-author of two of the WMJ articles cited herein. He notes that objections to conscientious objection in medicine claim that it
a) imposes doctors’s values on patients,
b) undermines professional standards, and
c) denies access to care.
Dr. Goligher points out that these claims are themselves "conscience-based ethical objections."
"The real question," he says, "is not whether conscience should be exercised, but rather which kinds of conscientious objections are appropriate and which kind are not."15
III.4 For example, no difficulty arises from the perspective of freedom of conscience when the only issue is clinical competence in relation to a service or procedure that the physician believes is in a patient’s best interests. Facilitating or arranging for the service to be provided by someone else is then a natural extension of the physician’s responsibilities to the patient and is consistent with the physician’s professional and personal moral integrity. Effective referral in this situation becomes an obligation, and refusing or failing to make an effective referral can be characterized as abandonment. This is the basis for ICME Paragraph 21.
III.5 On the other hand, physicians who refuse to provide or to make effective referrals for a treatment because evidence of efficacy is insufficient are acting in a manner consistent with their ethical obligations. Similarly, physicians who conclude that a treatment is medically contraindicated because it is harmful are ethically obliged to refuse to provide or facilitate that treatment. Both kinds of refusals can be properly described as examples of the exercise of conscience (or conscientious objection) based on clinical judgement. Again, Dr. Goligher:
In all these cases, I have not only a technical reason, but also a moral obligation, not to perform such interventions. As such, these are unavoidably conscience-based refusals; I can’t offer this treatment because it would be unethical for me to do so.16
Inadequate, prejudicial analytical framework
III.6 Paragraph 27 is irrelevant to conscientious objection in the circumstances described above because it ignores the role of conscience in medicine. For the same reason it does not and cannot provide coherent ethical guidance on conscientious objection by physicians. In that respect it is wholly inadequate.
III.7 Further, Paragraph 27 clearly assumes that what an objecting physician refuses to do is morally/medically acceptable and necessary "care" or medical treatment. It uncritically accepts as a matter of fact the very point that is usually contested in these cases. Beginning with the premise that objecting physicians are wrong to refuse a contested procedure, it concludes that their refusal can only be tolerated in strictly limited circumstances. This is not merely inadequate but a clearly prejudicial framework that lends itself to morally partisan abuse.
III.8 Finally, in demanding effective referral Paragraph 27 requires a form of collaboration that many objecting physicians reasonably consider ethically unacceptable, and that the WMA also considers unacceptable in relation to unethical procedures. Indeed, in relation to unethical activities the WMA identifies a range of morally relevant conduct that physicians should avoid, including referral,17 countenancing, condoning, facilitating or aiding,18,19 providing skills, premises, supplies, substances or knowledge, including individual health information,20 planning, instruction or training, preparation of reports,21, 22 incitement23 and retrospectively affirming or supporting unethical practices.24 This further demonstrates that Paragraph 27 is inadequate, prejudicial and anomalous in relation to WMA policy.
Critical distinctions not recognized
III.9 Objecting practitioners are typically willing to work cooperatively with patients and others in relation to patient access to services as long as cooperation does not involve collaboration: an act that establishes a causal connection to or de facto support for the services to which they object. They are usually willing to provide patients with information to enable informed decision-making and contact with other health care practitioners.
III.10 The distinctions between cooperation and collaboration and providing information vs. providing a service enable an approach that accommodates both patients and practitioners. However, these critical distinctions are irrelevant within the analytical framework adopted in Paragraph 27, so they are not recognized. As a result, Paragraph 27 does not attempt or even suggest how to accommodate physician integrity and patient requests when they conflict.
III.11 On the other hand, avoiding, minimizing and satisfactorily managing such conflicts can be challenging, and Paragraph 27 correctly identifies some of the issues that must be addressed, such as patient health and continuity of medical treatment. It does not follow, however, that they can be adequately addressed in a paragraph in the ICME. It may be that the shortcomings of Paragraph 27 reflect an attempt to accomplish more than can actually be accomplished within the constraints imposed by the nature of the document.
Conflict with existing WMA policy on euthanasia/assisted suicide
III.12 Euthanasia and/or assisted suicide are considered to be part of medical practice in Belgium, Netherlands, Luxembourg, Switzerland, Canada, Colombia, Australia, New Zealand, parts of the United States and (soon) Spain. Some former and present constituent members of the WMA consider the procedures to be in accord with good medical practice. It seems likely that other countries and national medical associations will follow suit.
III.13 Some physicians in these countries, like the WMA, remain opposed to euthanasia and assisted suicide. Currently, physicians are nowhere required to personally provide euthanasia or assisted suicide, but two medical regulators in Canada demand that objecting physicians collaborate in killing their patients by effective referral. Notwithstanding opposition to effective referral by the Canadian Medical Association,25 the position of objecting physicians in Canada is difficult and tenuous.26,27 Physicians in other countries may eventually find themselves in a similar position.
III.14 The WMA clearly asserts that this is unacceptable: "No physician should be forced to participate in euthanasia or assisted suicide, nor should any physician be obliged to make referral decisions to this end."28 In contrast, Paragraph 27 purports to establish an ethical obligation to actively and deliberately collaborate in a procedure a physician believes to be unethical, not excluding planned and deliberate medical homicide and assisted suicide.
III.15 Here it is relevant to recall what motivated physicians to found the WMA:
National medical association delegates returning [to] London in September, 1946 were uneasy and ambivalent about plans to nationalize health care systems in Britain and the Continent. On the one hand, they welcomed the growing interest in medicine by governments around the world. On the other, they worried about the consequences of (as later expressed) transforming all physicians into "Civil servants controlled by the state." They conceived an international medical association as support for national associations defending practitioners from government demands. (References omitted)29
III.16 Current WMA policy on euthanasia and assisted suicide supports objecting physicians in the manner intended by the founders of the Association. Paragraph 27 in its present form not only abandons them, but can and most certainly will be used against them. To assert that Paragraph 27 cannot be used in this way because the WMA considers euthanasia/assisted suicide unethical would be a parochial and morally partisan response that would make the ICME irrelevant in every jurisdiction where the procedures are legal.
Conflict with interdependent ICME provisions
III.17 Paragraph 27 undermines all of the functionally interdependent provisions of the ICME associated with practising medicine with conscience. Specifically, if physicians are compelled by Paragraph 27 to collaborate in procedures they reasonably believe to be contrary to good medical practice, harmful to patients, or otherwise unethical, it will be impossible for them
• to "practise with conscience, honesty, and integrity, while always exercising independent professional judgment and maintaining the highest standards of professional conduct;" (Paragraph 3: Personal and professional integrity)
• to maintain their "commitment to the ethical principles set forth" in the ICME; (Paragraph 6: Primacy of ethical principles)
• to steadfastly maintain "their sound professional medical judgments" against "instructions from non-physicians" — including patients, legislators, regulators, ethicists etc. (Paragraph 9: Integrity of medical judgement)
• to "commit to the primacy of patient health and well-being and . . .offer care in the patient’s best interest" (when, contrary to their views about health, well-being and best interest, physicians are compelled by Paragraph 27 to collaborate even in killing their patients); (Paragraph 14. Patient-centred practice)
• to ensure that "ethical principles are upheld when working in teams"; (Paragraph 30: Ethical collaboration)
• to "prevent national or international ethical, legal, or regulatory requirements that undermine" ethical obligations (since Paragraph 27 provides a vehicle for national, international, ethical, legal and regulatory authorities to compel physicians to collaborate in procedures they reasonably believe to be contrary to good medical practice, harmful to patients, or otherwise unethical); (Paragraph 39: Resistance to legal subversion of ethics)
• "to support fellow members in upholding" ethical responsibilities or "to take measures to protect them from undue influence, from violence and from oppression." (Paragraph 40: Collegial support and resistance to oppression)
Recommended amendments to Paragraph 27
III.18 The amendments to Paragraph 27 proposed by the Project make four changes:
• The analytical framework is expanded so that the amended Paragraph 27 addresses the exercise of freedom of conscience within medical practice in relation to contested procedures or services.
• Consistent with recognized ethical principles and other WMA policies, providing, facilitating, recommending and supporting are identified as morally relevant conduct in relation to contested procedures or services.
• The amendment explicitly recognizes the potential for significant ethical disagreement between physicians and the state or other authorities and gives practical force to the functionally interdependent provisions of the ICME identified in I.4 and III.17.
• The amended Paragraph 27 includes brief guidance about physician obligations to provide information to enable informed medical decision making and ensure patient safety and continuity of care.
III.19 A paragraph in the ICME can make key points but cannot comprehensively address this subject. The Project recommends that the amended Paragraph 27 be supplemented by a stand-alone WMA policy on physician freedom of conscience "to help physicians defend their personal and professional integrity while providing medical services within the context of patient-centred practice."30
III.20 It will be possible to discuss a policy of this kind at the conference planned for 2021 or 2022. However, for reasons that should be apparent from this submission, the conference should be dedicated to the subject of conscience in medical practice, not to "conscientious objection."
Notes
1. Rene Leiva et al, "Euthanasia in Canada: A Cautionary Tale" (2018 Sep) 64:3 World Med J 17.
2. Leonie Herx, Margaret Cottle & John Scott, "The Normalization of Euthanasia in Canada: the Cautionary Tale Continues" (2020 Apr) 66:2 World Med J 28.
3. Sean Murphy et al, "The WMA and the Foundations of Medical Practice: Declaration of Geneva (1948), International Code of Medical Ethics (1949)" (2020) 66:3 World Med J 2 [WMA Foundations].
4. Sean Murphy et al, "The Declaration of Geneva: Conscience, Dignity and Good Medical Practice" (2020 Aug) 66:4 World Med J 43.
5. WMA Foundations, supra note 3 at p 5–6.
6. Ibid.
7. Trudo Lemmens, Mary Shariff & Leonie Herx, "How Bill C-7 will sacrifice the medical profession’s Standard of Care" (11 February, 2021) Policy Options.
8. Canadian Aero Service Ltd. v. O'Malley, [1974] SCR 592, 1973 CanLII 23 (SCC)at 606; McInerney v MacDonald, [1992] 2 SCR 138, 1992 CanLII 57 (SCC) at 139, 149, 152; United Kingdom, Law Commission, Report No. 350 Fiduciary Duties of Investment Intermediaries (Williams Lea Group for HM Stationery Office,2014), Law Commission [UKLCR350] at para 3.53, note 107, citing Selby v Bowie (1863) 8 LT 372, Re Brockbank [1948] Ch 206.
9. Martin Gelter & Geneviève Helleringer, "Fiduciary Principles in European Civil Law Systems" (2018 March) European Corporate Governance Institute Law Working Paper No. 392/2018.
10. Conseil Européen Ordres Médecins, "European Charter of Medical Ethics" (10 June, 2011), Conseil Européen Ordres Médecins (website), at Principles 6, 8, 11, 15.
11. International Conference of Medical Professional Associations and Bodies with Similar Remits, "Principles of European Medical Ethics" (6 January 1987) Conseil Européen Ordres Médecins (website), at Articles 2, 5, 24.
12. WMJ Conscience, supra note 4 at 41.
13. WMJ Foundations, supra note 3 at 3.
14. WMJ Conscience, supra note 4 at 42.
15. CMDA Canada, "Understanding Conscience in Health Care" (21 April, 2021),at 00h:04m:01s to 00h:04m:48s [Goligher].
16. Ibid at 00h:05m:54s to 00h:07m:16s.
17. World Medical Association, "WMA Declaration on Euthanasia and Physician-Assisted Suicide" (13 November, 2019), WMA (website) [WMA Euthanasia].
18. World Medical Association, "WMA Declaration of Hamburg Concerning Support for Medical Doctors Refusing to Participate in or to condone, the use of Torture and other Cruel, Inhuman or Degrading Treatment" (13 July 2020), WMA (website) at para 1.
19. World Medical Association, "WMA Declaration of Tokyo: Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment" (25 May, 2020), WMA (website) at para 1, 5, 9.
20. Ibid at para 2, 5.
21. World Medical Association, "WMA Resolution on the Prohibition of Physician Participation in Capital Punishment" (6 October, 2018), WMA (website).
22. World Medical Association, "WMA Resolution on Prohibition of Forced Anal Examination to Substantiate Same-Sex Sexual Activity" (17 October, 2017), WMA (website) at para 6.
23. Ibid at para 2.
24. World Medical Association, "WMA Statement on Organ and Tissue Donation" (21 August, 2020), WMA (website), at para 34–36.
25. Canadian Medical Association, "Submission to the College of Physicians and Surgeons of Ontario Consultation on CPSO Interim Guidance on Physician-Assisted Death" (13 January, 2016), Protection of Conscience Project (website).
26. Leiva et al, supra note 1.
27. Herx et al, supra note 2.
28. WMA Euthanasia, supra note 17.
29. WMJ Foundations, supra note 3 at 2.
30. WMJ Conscience, supra note 4 at 44.