Below is a submission one resident of Ontario sent to the College of Physicians and Surgeons regarding CPSO's recent policy review on conscience rights.
Re:
Physicians and the Ontario Human Rights Code
Thank
you for the opportunity to provide input to your policy review
process.
As
a resident of Ontario, I urge you to uphold physicians’
freedom to practice medicine in
Ontario
according to their deeply held conscientious beliefs. To quote Murphy
and Genuis,
“willingness
to do what one believes to be wrong must never be made a condition
for
participation
in public life or for membership
in professional organizations.”1
If
we coerce physicians into violating their consciences, I am concerned
about the emotional
harm
that could be inflicted on these physicians.
In
their paper, Murphy and Genuis discuss how a sense of shame and guilt
often haunt people
who
have been forced into doing what they believe is wrong. It seems to
me that such shame and
guilt
could end up having significant detrimental effects on physicians’
health. While we often
hear
from opponents of conscience protection that patients have
the “right”
to various non emergency
medical
treatments (e.g. abortion, the birth control pill, etc.), in
practice, how severe
and
long-lasting is the harm, if any, that is actually done to patients
when they are unable to
obtain
that treatment immediately from a particular physician? And how does
this stack up
against
the potential harm to the physician who is forced to consistently
violate his/her
conscience?
It would seem to me that the supposed harm to these patients is more
in the nature of
a
possible inconvenience and thus cannot outweigh the potential harm
that would be suffered by
the
physician whose sense of moral integrity is at stake.
It
is worth pointing out that the very Supreme Court Justice who (alone
among seven Justices)
found
that women
have a “right to abortion,”
spoke strongly in defence of freedom of
conscience.
Madam Justice Bertha Wilson, in her reasons for judgment in the 1988
Morgentaler
decision
striking down
Canada’s abortion law, believed that it
was inappropriate for the state to
take
sides in the abortion debate,2
as to do so “is
not only to endorse but also to
enforce...one
conscientiously-held
view at the expense of another. It is to deny freedom of conscience
to some,
to
treat them as means to an end, to deprive them, as Professor
MacCormick puts it, of their
‘essential
humanity.’”
3
1
Sean Murphy and Stephen J.
Genuis, “Freedom of Conscience in Health Care: Distinctions and
Limits,” Bioethical
Inquiry
(2013) 10:347-354.
2
Although it is debatable whether the state could ever be truly
neutral on the abortion issue since by definition
abortion
involves competing interests (that of the woman’s vs that of the
fetus’s), Justice Wilson’s comments at least
would
imply that she felt third parties
should not be forced to facilitate a woman’s choice to have an
abortion.
Because
if a third-party is forced against their will to
take part in carrying out the woman’s choice, then that
person’s
conscientiously-held beliefs are violated.
3
R
v Morgentaler [1988]
at page 179,
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do
Page
2
By
extension, then, to force physicians to engage in practices that
violate their consciences
would
be to enforce one conscientiously-held view at the expense of
another. It would be to treat
these
physicians as a “means
to an end”
and would deprive them of their “essential
humanity.”
Not
only is a physician’s “essential humanity”
at stake when freedom of conscience is
denied,
but
more broadly so is our democratic political tradition, as Justice
Wilson notes:
...an
emphasis on individual conscience and individual judgment also lies
at the heart ofour
democratic political tradition. The ability of each citizen to make
free and informeddecisions
is the absolute prerequisite for the legitimacy, acceptability, and
efficacy of oursystem
of self-government. It is because of the centrality of the rights
associated withfreedom
of individual conscience both to basic beliefs about human worth and
dignityand
to a free and democratic political system that American jurisprudence
hasemphasized
the primacy or "firstness" of the First Amendment. It is
this same centralitythat
in my view underlies their designation in the Canadian
Charter of Rights andFreedoms
as "fundamental". They are
the sine qua non of
the political traditionunderlying
the Charter .
(underlining in original)4
Not
only is there potential for great harm to come to physicians, but I
believe harm will also
come
to patients, should CPSO decide to remove conscience protection. If a
physician is
“willing”
to provide or refer for a treatment that the physician believes is
harmful, and if the
physician
does this over and over again, the physician’s
conscience becomes dulled. What other
treatments
in future will physicians be asked to perform or make referrals for?
Without a
conscience
to guide them, how can physicians ultimately practice good medicine?
I for one
would
not want to be treated by a doctor who was not guided by their
conscience, who simply
provided
a treatment in blind obedience to a state-mandated
edict to “leave their morals at the
door.”
5 Conscience
is a bulwark against oppression by the state.
In
fact, “leaving
morals at the door” is not actually
possible. As Murphy points out, “...every
decision
concerning treatment is a moral decision, whether or not the
physician specifically
adverts
to that fact.”6
So the question becomes, since morality will
always be a part of the
practice
of medicine, whose version of morality will triumph?
Murphy
explains that colleagues of the objecting physician may be disturbed
by what appears to
them
as a moral judgment, but those non-objecting physicians are also
making a moral
judgment—they
judge the treatment to be good. This
leads Murphy to conclude that “What
unsettles
them is really not that the objector has taken a moral position on
the issue, but that he
has
made an explicit moral
judgement that differs from their implicit
one.”
4
R v Morgentaler [1988] at page 177.
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do
5
“I think it is
outrageous that doctors have the right to deny things like birth
control. I believe if they plan on being
in
a profession that helps other people, they need to leave their morals
at the door.” –Kate Desjardins as quoted by
the
Globe & Mail in “Should doctors have the right to refuse to
treat a patient,” June 27, 2014,
http://www.theglobeandmail.com/life/health-and-fitness/health/do-doctors-have-right-to-refuse-totreat/
article19383553/
6
Sean Murphy, “No more
Christian doctors - Part 3: Religious
Values,”
http://www.consciencelaws.org/background/procedures/birth002-03.aspx
Page
3
I
think this is an important insight from Murphy. It can help us to
understand not only the
objecting
physician’s
colleagues, but also the strong negative (over?) reaction of a
patient who is
denied
a treatment she believes she is entitled to, as in the case of Ottawa
woman Kate
Desjardins
who was outraged for being handed a letter stating that the doctor on
duty at a walkin
clinic
would not prescribe the birth control pill.7
While Ms. Desjardins may not realize it
herself,
it is certainly plausible that her strong negative emotions could
stem from a belief that
her
own moral judgment was being challenged. Was it disconcerting for her
to think that
someone
else might have moral concerns about the birth control pill? Was
someone making a
moral
judgment on her?
Whatever
emotions Ms. Desjardins experienced (whether she was consciously
aware of their
origins
or not), it is clear that the physician who objected to prescribing
the pill was not making a
moral
judgment on her (or
any other potential patient for that matter), but a moral judgment on
himself.
He believed, for reasons of medical judgment, professional ethics,
and religious belief,
that
it would be wrong for him to
prescribe the pill. But if Ms. Desjardins interpreted his reaction
as
a moral judgment on her,
well that is unfortunate, but we can hardly blame the physician for
doing
what he believes he needs to do to maintain his own integrity and
human dignity.
Some
opponents of conscience protection believe that if physicians are not
required to perform a
procedure
(such as abortion), they should at least be required to refer the
patient to another
doctor
who will provide the service. But referring a patient for a procedure
that the physician
believes
would be immoral to perform, is also immoral because it involves
complicity in the act.
This
notion of complicity is already recognized in our existing laws.
Aiding and abetting a
criminal
offence is itself a criminal offence,
according to section 21 of Canada’s Criminal
Code.8
Not
to apply the same logic in the case of what one deems to be a moral
offence seems logically
inconsistent.
If
physicians who object to providing/referring for controversial
treatments such as the birth
control
pill, abortion, (and euthanasia and assisted suicide if they are
legalized) are punished for
doing
what they believe is right and good, then physicians who object to
providing such
treatments
could eventually be weeded out of the profession. That would leave
only those
physicians
who support such controversial treatments remaining. Is this fair to
all those patients
who
hold similar values to the objecting physicians? Such patients will
then only have access to
physicians
who hold fundamentally different beliefs about what is good.
Morality
cannot be separated from medicine, or any other discipline, no matter
how much some
in
our society wish otherwise. Everyone has a belief system that guides
their behaviour. A doctor
who
believes that abortion is as valid an option to an unplanned
pregnancy as giving birth is
7 “Should doctors have the
right to refuse to treat a patient,” Kelly Grant, The Globe
& Mail, June 27, 2014,
http://www.theglobeandmail.com/life/health-and-fitness/health/do-doctors-have-right-to-refuse-totreat/
article19383553/
8
http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html
21.
(1) Every one is a party to an offence who
(a)
actually commits it;
(b) does
or omits to do anything for the purpose of aiding any person to
commit it; or
(c)
abets any person in committing it.
Page
4
simply not going to be able to relate in the same way to a pregnant woman who believes with all
her heart and soul that her baby is a human being, as would a physician who believes that child is
a human being and worthy of the same respect as a born human being. Or if the birth control pill
is not an option for a woman because of her religious beliefs, will she be able to access Natural
Family Planning as readily as Ms. Desjardins feels she is entitled to access the birth control pill?
If conscientious physicians, like the three in Ottawa who have been castigated because of their
refusal to provide some reproductive health services, are driven from the profession, then it
seems to me that such physicians would not be the only victims of discrimination – so would
countless patients in Ontario who would no longer have the opportunity to access physicians who
hold an ethical worldview similar to their own and thus to medical treatment informed and
guided by such ethical beliefs. Maybe that is the intention of Ms. Desjardins and some abortion
activists,9 but I do not believe it is the intention of CPSO. I would hope that the College would
respect the diversity of conscientiously held views amongst the people of Ontario and not enact
any policy that would effectively discriminate against an entire class of citizens.
For all of these reasons, I respectfully urge the College to uphold and protect physicians’
freedom of conscience.
Thank you once again for the opportunity to provide these comments.
9 “Doctors do not have the right to discriminate and deny basic health care,” Joyce Arthur, August 1, 2014;
http://rabble.ca/columnists/2014/08/doctors-do-not-have-right-to-discriminate-and-deny-basic-health-care
