Category: Publications

Protection of Conscience Project publications

Dr. Iain Benson returns to the Project Advisory Board

News Release
For immediate release

Protection of Conscience Project

Dr. Iain Benson has returned to the Protection of Conscience Project Advisory Board. Dr. Benson was a member of the Board from early 2018 to the fall of 2022, when he stepped down due to other commitments. He is Professor of Law, University of Notre Dame Australia, Sydney (2016, ongoing) and
Extraordinary Professor of Law, University of the Free State, Bloemfontein South Africa (2009, ongoing).

Born in Edinburgh, Scotland, the father of seven children, Professor Benson is an academic, lecturer and practising lawyer specialising in pluralism and human rights.  His particular focus is on freedoms of association, conscience and religion, the nature of pluralism, multi-culturalism and relationships between law, religion and culture. He has been involved in many of the leading cases on rights of association, conscience and religion in Canada and abroad for two decades.  As a barrister he has appeared before all levels of court and his work has been cited by the Supreme Court of Canada and the Constitutional Court of South Africa.

He was one of the drafters of the South African Charter of Religious Rights and Freedoms (signed by all major religions in that country in September 2010) and remains closely involved in advancing the Charter in that country and similar projects elsewhere. He was Special Rapporteur on Law and Religion in Canada and South Africa to the Pontifical Academy of the Social Sciences, Vatican City ( May, 2011, pub’d in Acad. Proceedings, 2012).

Author of over 40 academic articles and book chapters, he is co-editor with Tom Angier and Mark D. Retter of The Cambridge Handbook of Natural Law and Human Rights (C.U.P., 2023) and with Barry W. Bussey, of Religion Liberty and the Jurisdictional Limits of Law (Toronto: Lexis Nexis, 2017); he authored “Subsidiarity: Ancient and Contemporary Accounts” in Nicholas Aroney and Ian Leigh (eds) Christianity and Constitutionalism (O.U.P., 2022) as well as a monograph, Living Together with Disagreement: Pluralism, the Secular and the Fair Treatment of Beliefs by Law (Ballan Australia: Connor Court, 2012). His scholarly work is referred to in many books and articles.

He teaches Legal Philosophy, Legal History, Public International Law, Law and Religion and Contemporary Legal Issues and examines and supervises at Masters and Doctoral levels. He works in English and French, dividing his time between Australia (where he now lives) and France, South Africa and Canada (in the latter two of which he has or has had appointments).
[Faculty profile]

Contact: Sean Murphy, Administrator
Protection of Conscience Project
email: protection@consciencelaws.org

New College of Physicians human rights policy includes some surprises, but tightens the screws on dissenting physicians

News Release

For immediate release

Protection of Conscience Project

A draft College of Physicians and Surgeons of Ontario (CPSO) policy on human rights updates a controversial requirement for “effective referral” for morally contested services. The policy survived a constitutional legal challenge, and the CPSO seems to consider this a license to make increasingly oppressive demands on dissenting physicians.

In addition, however, the draft includes some surprises:

  • A new policy provision validates the reasoning of physicians opposed to making effective referrals for reasons of conscience. It forbids physicians to comply with patient requests they believe to be discriminatory, applying to facilitation of discrimination the same reasoning applied by physicians who refuse to facilitate euthanasia and assisted suicide by effective referral.

These policy revisions are described in a submission by the Protection of Conscience Project () in response to the CPSO invitation for comment on Human Rights in the Provision of Health Services (Human Rights 2022).

Human Rights 2022 tightens the screws on physicians unwilling to provide or facilitate procedures for reasons of conscience. They are warned that “many patients” will need their help to get even services that patients can directly access.

Further, they must:

Through Human Rights 2022 the CPSO forbids physicians to “express” moral judgement not only about patient beliefs, but about the services they seek. This is inconsistent with the Canadian Medical Association Code of Ethics and Professionalism and obstructs physician-patient matching, an effective strategy for accommodating patients and physicians and improving health outcomes. It also attacks physician freedom of conscience, which can only be exercised by expressing moral/ethical judgement about services.

In defending the effective referral policy, the CPSO assured the courts that physicians could avoid moral/ethical conflicts by changing their scope of practice: from palliative care to hair restoration, for example. A new provision in Human Rights 2022 seems intended to pressure physicians to extend their scope of practice/clinical competence to include services to which they object for reasons of conscience.

Finally, Human Rights 2022 includes a pejorative and unnecessary warning directed at objecting physicians, implying that are likely to lie, deceive, mislead and coerce their patients. Demeaning innuendos of this kind are considered a form of workplace harassment by the Ontario government.

The experience of the Protection of Conscience Project is that objecting practitioners are typically willing to work cooperatively with patients and others to accommodate 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.

The Project submission includes an example of a single protection of conscience policy applicable to all services and procedures.

The Protection of Conscience Project is a non-profit, non-denominational initiative that supports health care workers who want to provide the best care for their patients without violating their own personal and professional integrity. It does not take a position on the acceptability of morally contested procedures.

Contact: Sean Murphy, Administrator (protection@consciencelaws.org)

Ontario College of Physicians cautioned against disciplining physicians

Irremediability of mental illness, eligibility for euthanasia in dispute

News Release

For immediate release

Protection of Conscience Project

MAID (Medical Assistance in Dying, euthanasia/assisted suicide) becomes available in Canada for patients with mental illness alone in March, 2023. A patient must have an irremediable medical condition to be eligible for MAID, but a number of prominent Canadian psychiatrists insist that mental illness cannot be classified as an irremediable medical condition.

Now the College of Physicians and Surgeons of Ontario (CPSO) has been cautioned that it cannot discipline these physicians if they refuse to facilitate requests for euthanasia or assisted suicide from patients they consider ineligible for the services.

The comments are included in a submission from the Protection of Conscience Project on the CPSO’s draft revision of its MAID policy.

The submission also recommends that the CPSO explicitly reiterate its position that euthanasia/assisted suicide requests are not emergencies. A statement to that effect was deleted from the draft MAID policy, which now cites a resource suggesting that practitioners providing euthanasia/assisted suicide in the community should call 911 if they need help from paramedics emergency room staff to establish IV access.

Repeating a previous recommendation, the Project urged that responsible practitioners should be required to be present and remain with patients self-administering MAID drugs until death ensues. Failed unaccompanied self-administration can bring patients to hospital emergency rooms, causing conflict and distress. Successful unaccompanied self-administration could lead to delayed discovery of corpses in disturbing circumstances, triggering police and coroner investigations.

Practitioners unwilling to falsify death certificates for euthanasia/assisted suicide should not be forced to do so, says the Project, since falsification of death certificates is contrary to accepted international standards and can be considered deceptive, unethical or professionally ill-advised.

Finally, the Project recommends that the CPSO provide ethical direction or guidance about proceeding with euthanasia when an incapacitated patient who has signed a waiver of final consent has expressed ambivalence about proceeding. Ambivalence falls short of the Criminal Code threshold of refusal, so a practitioner can legally proceed if a patient has expressed only ambivalence.

The Protection of Conscience Project is a non-profit, non-denominational initiative that supports health care workers who want to provide the best care for their patients without violating their own personal and professional integrity.  It does not take a position on the acceptability of morally contested procedures.


Contact: Sean Murphy, Administrator (protection@consciencelaws.org)

Conscience Project critiques Ontario Physicians College euthanasia/assisted suicide policy

Referral, urgent situations, death certificates, criminal law

News Release

For immediate release

Protection of Conscience Project

Conscience Project critiques Ontario Physicians College euthanasia/assisted suicide policy

Powell River, BC. (28 April, 2021) The 2019 decision of the Ontario Court of Appeal supporting the College of Physicians and Surgeons of Ontario was not the last word on the subject of physician freedom of conscience.

That message was delivered to the College by the Protection of Conscience Project in a submission responding to the College’s request for public feedback on its policy, Medical Assistance in Dying (MAiD). The submission focuses primarily on the College demand that physicians unwilling to provide euthanasia or assisted suicide (EAS) for reasons of conscience provide an “effective referral”: that is, connect the patient directly with someone willing to provide a lethal injection or assist with suicide.

The submission on MAiD addresses three points unique to euthanasia and assisted suicide.

Conflicts in urgent situations: If a patient is approved for EAS at some future date, a sudden deterioration of the patient’s condition may cause the patient to ask for immediate relief by EAS. In the absence of an EAS practitioner, other practitioners may be willing to alleviate the patient’s distress by palliative interventions, but not to provide EAS. The Project suggests how this conflict can be avoided.

Falsifying death certificates: Falsification of death certificates is contrary to accepted international standards and can be considered deceptive, unethical or professionally ill-advised. The Project suggests how EAS practitioners unwilling to falsify death certificates can be accommodated by the College and Office of the Chief Coroner even if current government policy does not change.

Criminal law limits on College policy: The Project’s position is that the College cannot proceed against practitioners who, having the opinion that a patient is not eligible for EAS, refuse to do anything that would entail criminal responsibility for homicide/assisted suicide, including “effective referral.” Further, to advise or attempt to coerce them to present EAS as treatment options or to participate by effective referral would seem to be a criminal offence. Finally, since counselling suicide remains a criminal offence, it appears that practitioners cannot be compelled to present assisted suicide or MaiD as treatment options unless a patient has expressed an interest in the services.

The College’s clarification that it does not require objecting practitioners to personally kill their patients is welcome. However, the Project’s position is that this ought to be the norm in a democratic society, not a “concession”or an element in the “accommodation” of freedom of conscience.

While the submission includes specific policy recommendations within the existing MAiD policy framework, it recommends that the College adopt a single protection of conscience policy in line with “the basic theory” of the Canadian Charter of Rights affirmed by the Supreme Court of Canada and consistent with rational moral pluralism. Such a generally applicable policy is included in the simultaneous Project submission to the College on Professional Obligations and Human Rights.

Public consultations on Professional Obligations and Human Rights [Consultation Page] and Medical Assistance in Dying [Consultation Page] are open until 14 May, 2021.

Contact: Sean Murphy,
Administrator, Protection of Conscience Project
protection@consciencelaws.org

Ontario College of Physicians policy challenged

Forcing physicians out of Covid fight not in public interest

News Release

For immediate release

Protection of Conscience Project

Ontario College of Physicians policy challenged

Powell River, B.C. (28 April, 2021) The 2019 decision of the Ontario Court of Appeal supporting the College of Physicians and Surgeons of Ontario was not the last word on the subject of physician freedom of conscience.

That message was delivered to the College by the Protection of Conscience Project in a submission responding to the College’s request for public feedback on its policy, Professional Obligations and Human Rights (POHR).

The submission includes a cautionary note about the potential implications of human rights law for practitioners providing euthanasia and assisted suicide. However, the primary focus is on the College demand that physicians unwilling to provide a service or procedure for reasons of conscience provide an “effective referral”: that is, connect the patient directly with someone willing to do what they consider immoral/unethical.

Practitioners who object to providing a service typically provide information and work cooperatively with patients and others in relation to patient access to services. While willing to respectfully cooperate, they are unwilling to collaborate by doing something that makes them a party to what they consider wrongful and/or harmful. The distinctions between providing information vs. providing a service and between cooperation vs. collaboration enable an approach that accommodates both patients and practitioners, argues the Project.

However, the College is clearly confused about such critical distinctions. Citing College policy and reasoning, the submission states, “the College’s assertion that effective referral for euthanasia/assisted suicide does not ‘signal’ endorsement or support for the procedures [Advice:MAiD] is either disingenuous or the product of badly muddled wishful thinking.”

“The College does not even correctly apply its own definition of effective referral in its companion policy document,” observes Sean Murphy, Administrator of the Project.

According to the College, physicians unwilling to comply with its effective referral policy should restrict their practices to specialties like hair restoration.[1] This would force all objecting physicians out of general practice.

“To put it in a currently relevant perspective,” says Murphy, “the College would have them terminate all Covid 19 pandemic activities and take up podiatry or aviation medicine. This is hardly consistent with ensuring access to health care or protecting the public interest.”

The Project recommends that the College adopt a single protection of conscience policy in line with “the basic theory” of the Canadian Charter of Rights affirmed by the Supreme Court of Canada and consistent with rational moral pluralism. The submission includes a such general policy, drawing on policy documents from the Canadian Medical Association, Canadian Nurses’ Association, Catholic Health Association of Canada and the Canadian Medical Protective Association.

The Protection of Conscience Project has also made a submission about College’s policy on euthanasia and assisted suicide, Medical Assistance in Dying. Public consultations on Professional Obligations and Human Rights [Consultation Page] and Medical Assistance in Dying [Consultation Page] are open until 14 May, 2021.

Notes

  1. Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII) at para 184.

Contact: Sean Murphy,
Administrator, Protection of Conscience Project
protection@consciencelaws.org