Category: Publications

Protection of Conscience Project publications

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Objection

Abstract

Conscientious Objection is unacceptable because it attacks the character and competence of objecting physicians, and it nullifies their freedom of conscience by compelling them to arrange for patients to obtain services to which they object.

Council has been given no evidence that anyone in Saskatchewan has ever been unable to access medical services or that the health of anyone in Saskatchewan has ever been adversely affected because a physician has declined to provide or refer for a procedure for reasons of conscience. In the absence of such evidence, the limits proposed in Conscientious Objection are neither reasonable nor demonstrably justified.

Conscientious Objection is not justified by the principles included in the policy because there is no necessary connection between the principles and a policy requiring physicians to do what they believe to be wrong. The principles can be applied to force physicians to facilitate morally contested procedures only if they are ideologically interpreted in order to impose one world view at the expense of others. The Supreme Court of Canada has unanimously affirmed that such an approach is unacceptable.

It is unrealistic to believe that the approach taken in Conscientious Objection will not be taken with respect to physician administered euthanasia and physician assisted suicide. The disclaimer to the contrary is ill-advised and misleading. A policy on Conscientious Objection should be sufficiently flexible to apply to direct or indirect participation in killing patients or helping them commit suicide. If Council is uncertain how this can be done, it should postpone policy development concerning Conscientious Objection until after the Carter decision comes into force in 2016.

Alternatively, if the College believes that some kind of guidance should be provided with respect to this contentious issue, the Project offers an alternative that protects physician freedom of conscience and religion but does not obstruct patient access to services, including euthanasia and assisted suicide.

Contents

I.    Introduction

II.    Overview of this submission

III.    Limitation of fundamental freedoms

IV.    “Purpose” and “Principles”

V.    Scope of Conscientious Objection

V.1    The disclaimer

V.2    Dissecting the disclaimer

V.3    Summary

V.4    Recommendations

VI.    Physician obligations

5.1    Taking on new patients (Comment)

5.2    Providing information to patients

5.3    Exercise of freedom of conscience and religion

5.4    Necessary treatments to prevent harm to patients

Appendix “A” – Conscientious Objection– “Purpose” and “Principles”: Comment and critique

A1.    Introduction

A2.    “The fiduciary relationship between a physician and a patient.”

A3.    “Patient autonomy.”

A4.    “A patient’s right to continuity of care.”
“Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians.”
“Physicians have an obligation not to abandon their patients.”

A5.    “A patient’s right to information about their care.”
“Physicians have an obligation to provide full and balanced health information, referrals and health services to their patients in a non-discriminatory fashion.”

A6.    “Physicians should not intentionally or unintentionally create barriers to patient care.”
“Physicians have an obligation not to interfere with or obstruct a patient’s right to access legally permissible and publicly-funded health services.”

A7.    “The College has a responsibility to impose reasonable limits on a physician’s ability to refuse to provide care where those limits are appropriate.”

A8.    “Medical care should be equitably available to patients whatever the patient’s situation, to the extent that can be achieved.”

A9.    “The College of Physicians and Surgeons has an obligation to serve and protect the public interest.”

A10.    “The Canadian medical profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services.”

A11.    “Physicians’ freedom of conscience should be respected.”

A12.    “Physicians’ exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.”

A13.    “Physicians’ exercise of freedom of conscience to limit the services that they provide to patients should be done in a manner that respects patient dignity, facilitates access to care and protects patient safety.”

A14.    Summary

Appendix “B” – Scope of Conscientious Objection
Purported non-applicability of policy to assisted suicide, euthanasia

B1.    Disclaimer

B2.    Disclaimer inconsistent with opinion of the CMPA

B3.    Disclaimer inconsistent with policy origin, previous statements

B4.    Disclaimer inconsistent with links between abortion and euthanasia

B5.    Principles support coercion of physicians to facilitate euthanasia

B5.3    “The fiduciary relationship between a physician and a patient.”

B5.4    “Patient autonomy.”

B5.5   “A patient’s right to continuity of care.”
“Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians.”
“Physicians have an obligation not to abandon their patients.”

B5.6    “Physicians should not intentionally or unintentionally create barriers to patient care.”
“Physicians have an obligation not to interfere with or obstruct a patient’s right to access legally permissible and publicly funded health services.”
“Physicians’ exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.”

B5.7    “Medical care should be equitably available to patients whatever the patient’s situation, to the extent that can be achieved.”

B5.8    “The College has a responsibility to impose reasonable limits on a physician’s ability to refuse to provide care where those limits are appropriate.”

B5.9    “The College of Physicians and Surgeons has an obligation to serve and protect the public interest. The Canadian Medical Profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services.”

B6.    Unsatisfactory reasons offered to support the disclaimer

B6.1    Questioning the reasons

B6.2    Answering the questions

Appendix “C” – Conscientious Objection – 5.  Physician Obligations
Comment and Critque

C1.    5. Obligations (Project alternative)

5.1    Taking on new patients

5.2    Providing information to patients

5.3    Exercise of freedom of conscience and religion

5.4    Necessary treatments to prevent harm to patients

C2.    Conscientious Objection and Project alternative compared

Table A. Taking on new patients

Table B.  Providing information to patients

Table C.  Exercise of freedom of conscience and religion

Table D.  Necessary treatments to prevent harm to patients

C3.    Commentary corresponding to the tables in C2

Table A  5.1 Taking on new patients

Table B  5.2 Providing information to patients

Table C  5.3 Exercise of freedom of conscience and religion

Table D  5.4 Necessary treatments to prevent harm to patients.

Science, religion, public funding and force feeding in modern medicine

Sean Murphy*

Responding to Bronca, T. “A conflict of conscience: What place do physicians’ religious beliefs have in modern medicine.” Canadian Health Care Network, 26 May, 2015.

Tristan Bronca writes, “Belief without evidence is becoming incompatible with scientific sensibilities.”1

This notion might be exemplified by Dr. James Downar. Advocating for physician assisted suicide and euthanasia in Canadian Family Practice, he described himself as “a secular North American who supports individual autonomy, subject only to limitations that are justifiable on the basis of empirically provable facts.”2

Dr. Downar’s “Yes” was opposed by Dr. Edward St. Godard’s “No.”3 Since both are palliative care specialists, their differences on the acceptability of physician assisted suicide and euthanasia are not explained by differences in their clinical experience, but by their different moral or ethical beliefs.

However, neither Dr. Downar’s beliefs nor Dr. St. Godard’s can be justified “on the basis of empirically provable facts.” Nor can Dr. Downar’s support for individual autonomy, since empirical evidence demonstrates the primacy of human dependence and interdependence – not autonomy. Empirical evidence can provide raw material needed for adequate answers to moral or ethical questions, but it cannot answer them. As Dr. McCabe told Tristan Bronca, science is necessary – but not sufficient. Moral decision-making requires more than facts.

And the practice of medicine is an inescapably moral enterprise. Every time they provide a treatment, physicians implicitly concede its goodness; they would not otherwise offer it. This is usually unnoticed because physicians habitually conform to standards of medical practice without adverting to the beliefs underpinning them. Hence, the demand that physicians must not be allowed to act upon beliefs is unacceptable because it is impossible; one cannot act morally without reference to beliefs.

But Tristan Bronca asks specifically about whether or not religious beliefs belong in medical practice in a secular society. On this point, the Supreme Court of Canada is unanimous: “Yes.”

“Everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic or religious,” Mr. Justice Gonthier wrote in Chamberlain v. Surrey School District No. 36. “To construe the ‘secular’ as the realm of the ‘unbelief’ is therefore erroneous.”

“Why,” he asked, “should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism.”4

Thus, to argue that a “secular” society excludes religious belief perpetuates an error that contributes significantly to climate of anti-religious intolerance.

Public funding of services is beneficial for patients, but quite distinct from physician obligations. After all, physicians provide many kinds of elective surgery and health services that are not publicly funded, and physicians are not paid for publicly funded services that they do not provide. Besides, our secular society taxes both religious and non-religious believers, so both have equal claims on “public dollars.”

Science, religion, public funding and force feeding in modern medicine

Most important, public funding does not prove that a procedure is morally or ethically acceptable, any more than public funding proves that force-feeding prisoners in Guantanamo Bay is acceptable. Perhaps that point will come up in military proceedings against a navy nurse who refused orders to do so.5

[PDF File]

The Canadian Healthcare Network posted this response in the on-line edition, which is accessible only to health care professionals and managers.

Notes

1.  Bronca, T. “A conflict of conscience: What place do physicians’ religious beliefs have in modern medicine.” Canadian Health Care Network, 26 May, 2015 (Accessed 2018-03-07).

2. Downar J. “Is physician-assisted death in anyone’s best interest? – Yes.” Canadian Family Physician, Vol. 61: April, 2015, p. 314-316 (Accessed 2018-03-07).

3. St. Godard E. “Is physician-assisted death in anyone’s best interest? – No.” Canadian Family Physician, Vol. 61: April, 2015, p. 316-318 (Accessed 2018-03-07).

4. Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 (SCC), para. 137 (Accessed 2014-08-03). “Madam Justice McLachlin, who wrote the decision of the majority, accepted the reasoning of Mr. Justice Gonthier on this point thus making his the reasoning of all nine judges in relation to the interpretation of ‘secular.’” Benson I.T., “Seeing Through the Secular Illusion” (July 29, 2013). NGTT Deel 54 Supplementum 4, 2013  (Accessed 2018-03-07).

5. Rosenberg C. “Top nursing group backs Navy nurse who wouldn’t force-feed at Guantánamo.” Miami Herald, 19 November, 2014 (Accessed 2018-03-07)

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Refusal (as revised)

5 June, 2015

Abstract

Council has been given no evidence that anyone in Saskatchewan has ever been unable to access medical services or that the health of anyone in Saskatchewan has ever been adversely affected because a physician has declined to provide or refer for a procedure for reasons of conscience.

The conclusion that objecting physicians “should not be obligated to provide a referral to a physician who will ultimately potentially provide the service” is entirely satisfactory. It is a tacit admission that such a policy would be an unacceptable assault on freedom of conscience.

Conscientious Refusal as revised attempts to nullify the alleged ‘bias’ of physicians who object to a procedure for reasons of conscience by requiring them to refer patients to a non-objecting colleague. This proposal is not sound, since, if it is to be applied fairly and consistently, the ‘bias’ of physicians who do not object to a procedure should be nullified in the same way. This would simply exchange one kind of alleged ‘bias’ for another, inconvenience patients and provide them with no better care.

The more sensible course is to require all physicians to provide patients with sufficient information to satisfy the requirements of informed medical decision making.  Physicians must advise patients at the earliest reasonable opportunity of services or procedures they decline to recommend or provide for reasons of conscience, advise affected patients that they may seek the services elsewhere, and ensure that they have sufficient information to approach other physicians, heath care workers or community organizations.  They must not promote their own moral or religious beliefs when interacting with a patient.

Physicians unwilling to abide by these requirements must promptly arrange for a patient to be seen by another physician or health care worker who is able to do so.

If the College is determined to enact a policy on conscientious refusal, it should ensure that the policy adopted is sufficiently flexible to accommodate physicians with respect to all procedures or services. Otherwise, Council should reject Conscientious Refusal as revised and postpone policy development until after the Carter decision comes into force in 2016.

Contents

I.    Revision of draft policy – Conscientious Refusal

II.    Focus of this submission

III.    Section 5.3

IV.    Section 5.3: Suggested modification

V.    Section 2: Scope

VI.    Summary

Appendix “A” – Ontario College briefing materials

Appendix “B” – Providing Information

Appendix “C” – Conscientious Refusal and assisted suicide/euthanasia

Protection of Conscience Project sees progress, room for improvement in draft Saskatchewan policy

Draft  policy no longer demands referral by objecting physicians

Project –  Prohibiting communication with patients by objecting physicians “unsound”; disclaimer re: euthanasia and assisted suicide “misleading and ill advised”

News Release

Protection of Conscience Project

A committee of the College of Physicians and Surgeons of Saskatchewan has revised a controversial draft policy after a public consultation yielded “a very significant return” of over 4,400 responses, almost all of which opposed it.  The consultation appears to have produced no evidence that anyone in Saskatchewan has ever been unable to access medical services because a physician has declined to provide or refer for a procedure for reasons of conscience, or that the health of anyone in Saskatchewan has ever been adversely affected by conscientious objection by a physician.

The committee concluded that objecting physicians “should not be obligated to provide a referral to a physician who will ultimately potentially provide the service.”  The requirement was deleted from the revised draft.

In a submission to the College, the Protection of Conscience describes the deletion as as “entirely satisfactory” and “a tacit admission that such a policy would be an unacceptable assault on freedom of conscience – not a compromise.”

However, the revised draft effectively prohibits objecting physicians from communicating with patients about morally contested procedures, requiring them to refer patients to a non-objecting colleague.  The assumption underlying the recommendation is that a physician who has a moral viewpoint is incapable of properly communicating with a patient because of ‘bias’.

In its submission, the Project points out that all physicians have moral viewpoints. If the proposed policy is to be applied fairly and consistently, the ‘bias’ of physicians who do not object to a procedure should be nullified in the same way.

This proposal is unsound.  If applied as now written, it would simply exchange one kind of alleged ‘bias’ for another.  If applied fairly and consistently to all physicians, it would inconvenience patients, delay treatments, provide no better outcomes, double the costs of providing health care and antagonize physicians on all sides of any issue.

Instead, the Project recommends that all physicians should be required to provide patients with sufficient information to satisfy the requirements of informed medical decision making, and

  • advise patients at the earliest reasonable opportunity of services or procedures they decline to recommend or provide for reasons of conscience, and
  • advise affected patients that they may seek the services elsewhere, and ensure that they have sufficient information to approach other physicians, heath care workers or community organizations

After the public consultation, the drafting committee added a disclaimer to the revised draft stating that the policy will not apply to physician administered euthanasia and physician assisted suicide.  Among the ostensible reasons offered for this are that the issue is “in a state of development,” ethical implications have not been fully explored, legislation is lacking and there is “considerable uncertainty” about it.

The Project submission describes this as “misleading and ill-advised.”  It reminds the College that, when the associate registrar proposed the coercive policy in July, 2014, it was well known that the Supreme Court of Canada might well legalize physician assisted suicide, and he specifically referred to that.  After the Supreme Court of Canada issued its judgement in Carter, the associate registrar defended the proposition that physicians should be disciplined or fired if they refused to at least refer patients for euthanasia and physician assisted suicide. He did not then urge caution because the ethical implications of the ruling were unclear or there was considerable uncertainty about it.

“It is unrealistic to believe that Conscientious Refusal as revised will not be applied to physician administered euthanasia and physician assisted suicide,” states the Project submission, “either directly, after a certain length of time, or indirectly, as a paradigm for further policy development.”

It recommends that, if the College is determined to enact a policy on conscientious refusal, it should ensure that the policy adopted is sufficiently flexible to accommodate physicians with respect to all procedures or services. Otherwise, Council should reject Conscientious Refusal as revised and postpone policy development until after the Carter decision comes into force in 2016.

The revised policy, Conscientious Refusal, may again be considered by Council on 19 June, 2015.

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

Illinois controversy about legislative overreach

 Catholic bishops withdraw opposition, others remain opposed

Confrontation centres on complicity

Sean Murphy*

 Introduction

Among American states, Illinois has the most comprehensive protection of conscience legislation, the Health Care Right of Conscience Act (HCRCA). In 2009 an attempt was made to nullify the Act with respect to abortion, contraception and related procedures by introducing HB 2354 (Reproductive Health and Access Act), but the bill died in committee two years later.1 Now it appears that the HRCA may be changed by Senate Bill 1564. Critics say the bill tramples upon physician freedom of conscience,2 while the bill’s supporters, like the American Civil Liberties Union (ACLU), claim that the bill is “about making sure no one is withholding information from the patient.”3

SB 1564 was actually drafted by the ACLU,3 but it was introduced by Illinois Senator Daniel Biss. He said that the amendments were partly in response to the case of a woman who was miscarrying over several weeks, but who was refused “diagnosis or options” in the hospital where she had sought treatment.4  Senator Bliss was apparently referring to the story of Mindy Swank, who testified before a Senate legislative panel about her experience.  The Illinois Times reported that she suffered “a dangerous, weeks-long miscarriage” because of the refusal of Catholic hospitals to provide abortions.5

Unfortunately, the Illinois Senate Judiciary Committee does not record or transcribe its hearings, and conflicting news reports make it difficult to determine exactly what happened at some critical points in her story.  Moreover, it appears that the Committee did not hear from the hospitals and physicians who were involved with Ms. Swank, so we are left with a one-sided account of what took place.6

Nonetheless, as a first step in considering the particulars of the bill and the controversy it has engendered, it is appropriate to review the evidence offered to support it.  We will begin with Mindy Swank’s testimony, even if some details are lacking, and then examine the experience of Angela Valavanis, a second case put forward by the ACLU to justify SB 1564.7  [Full Text]