“The core of a modern pluralism”

Sean Murphy*

Introduction

In 2008 the Ontario Human Rights Commission (OHRC) attempted to suppress freedom of conscience and religion in the medical profession in Ontario on the grounds that physicians are “providers of secular public services.”1   The hostility of the OHRC toward religious believers in the medical profession contributed significantly to anti-religious sentiments and a climate of religious intolerance in the province.  This was displayed last year during a public crusade against three Ottawa physicians who refused to prescribe or refer for contraceptives or abortion, in part, because of their religious beliefs.2

Despite the fact that there was no evidence that even a single person in Ontario has ever been unable to access medical services because of conscientious objection by a physician, the College of Physicians and Surgeons of Ontario has now adopted a policy that requires all physicians who object to a procedure for reasons of conscience to direct patients to a colleague willing to provide it.3 A policy to the same effect has been approved in principle by the College of Physicians and Surgeons in Saskatchewan – also without evidence – though it is now under review.4

Submissions made by the Protection of Conscience Project to the Colleges in Ontario and Saskatchewan during public consultations included a discussion of religious belief, secularism and pluralism which has been adapted for this presentation.  The key points are that a proper understanding of “the secular” includes religious belief rather than excluding it, that the core of a modern pluralism requires the accommodation of different world views in the public square, and that this end is not served by authoritarian edicts issued by medical regulators.

A secular public square includes religious belief.

Those who would suppress freedom of conscience and religion in the medical profession on the grounds that physicians are “providers of secular public services”(emphasis added), erroneously presume that what is “secular” excludes religious belief.  The error is exposed by Dr. Iain Benson in his paper, Seeing Through the Secular Illusion.5

"The core of a modern pluralism"Dr. Benson emphasizes that the full bench of the Supreme Court of Canada has unanimously affirmed that “secular” must be understood to include religious belief.  The relevant statement by the Court opens with the observation that “nothing in the [Canadian Charter of Rights and Freedoms], political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy.”

The Court rejected that view that,  “if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable.”

The problem with this approach is that everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic or religious. To construe the ‘secular’ as the realm of the ‘unbelief’ is therefore erroneous. Given this, why, then, 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. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.6

Thus, the Supreme Court of Canada has acknowledged that secularists, atheists and agnostics are believers, no less than Christians, Muslims, Jews and persons of other faiths. Neither a secular state nor a secular health care system (tax-paid or not) must be purged of the expression of religious belief.  Instead, rational democratic pluralism in Canada must make room for physicians who act upon religious beliefs when practising medicine.

However, College officials in Ontario and Saskatchewan are taking exactly the opposite approach.  They demand morally significant participation by all physicians in procedures known to be contrary to the teaching of major religious groups.  Such policies are inimical to the presence of religious believers in medical practice.  Where the Supreme Court has recognized that religious believers and religious communities are part of the warp and woof of the Canadian social fabric, medical regulators in Ontario and Saskatchewan act as if they don’t exist – or should be made to disappear.

Accommodate different conceptions of “the good life.”

It is worthwhile to contrast the illiberal attitude of College officials with the approach taken by Madame Justice Bertha Wilson of the Supreme Court of Canada in the landmark 1988 case R. v. Morgentaler. Addressing issues of freedom of conscience and abortion, Madame Justice Wilson argued that “an emphasis on individual conscience and individual judgment . . . lies at the heart of our democratic political tradition.”7

At this point in the judgement, Wilson was not discussing whether or not the conscience of a woman should prevail over that of an objecting physician, but how the conscientious judgement of an individual should stand against that of the state. Her answer was that, in a free and democratic society, “the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.”8  This statement was affirmed unanimously in 1991 by a panel of five judges, and by the full bench of the Court in1996.9

The accommodation recommended by Madame Justice Wilson and the kind of modern pluralism advocated by the Supreme Court of Canada contrast sharply with the authoritarian approach being taken by Colleges of Physicians and Surgeons in Ontario and Saskatchewan.

Avoid authoritarian solutions.

Making room in the public square for people motivated by different and sometimes opposing beliefs can lead to conflict, but, as we have seen, the Supreme Court warns against that singling out and excluding religious belief or conscientious convictions in order to prevent or minimize such conflict is a perverse distortion of liberal principles.6

It is also dangerous. It overlooks the possibility that some secularists – like some religious believers – can be uncritical and narrowly dogmatic in the development of their ethical thinking, and intolerant of anyone who disagrees with them. They might see them as heretics who must be driven from the professions, from the public square, perhaps from the country: sent to live across the sea with their “own kind,” as one of the crusaders against the Ottawa physicians put it.10

University of Victoria law professor Mary Anne Waldron provides a reminder and a warning:

Conflict in belief is an endemic part of human society and likely always will be. What has changed, I think, is the resurrection of the idea that we can and should compel belief through legal and administrative processes, or, if not compel the belief itself, at least force conformity. Unfortunately, that begins the cycle of repression that, if we are to maintain a democracy, we must break.11

On this point, it is essential to note that a secular ethic is not morally neutral.12 The claim that a secular ethic is morally neutral – or that one can practise medicine in a morally “neutral” fashion- is not merely fiction. It is an example of “bad faith authoritarianism. . . a dishonest way of advancing a moral view by pretending to have no moral view.”13

Ontario’s new policy and the one being considered in Saskatchewan illustrate one of the most common examples of “bad faith authoritarianism”: the pretence that forcing a physician who will not kill a patient to find someone willing to do so is an acceptable compromise that does not involve morally significant participation in killing.

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Notes:

1.  Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, “Physicians and the Ontario Human Rights Code.” 15 August, 2008. (Accessed 2014-03-11), citing Norton K.C. “Letter to Ontario’s Attorney General expressing concern about allowing public officials to refuse to marry same-sex couples.” (Accessed 2014-03-11)

2.  Murphy S.  “NO MORE CHRISTIAN DOCTORS.”  Protection of Conscience Project (March, 2014)

3.  College of Physicians and Surgeons of Ontario, Policy #2-15: Professional Obligations and Human Rights (Updated March, 2015) (Accessed 2015-03-16)

4.  College of Physicians and Surgeons of Saskatchewan, Policy: Conscientious Refusal.

5.  Benson, I.T., “Seeing Through the Secular Illusion” (July 29, 2013). NGTT Deel 54 Supplementum 4, 2013. (Accessed 2014-02-18)

6.  Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 (SCC), para. 137 (Accessed 2014-08-03). Dr. Benson adds: “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 2014-02-18)

7.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 165.  Accessed 2015-02-26.

8.  R. v. Morgentaler  (1988)1 S.C.R 30 (Supreme Court of Canada) p. 166. Accessed 2015-02-26.

9.  R. v. Salituro[1991] 3 S.C.R. 654; Québec (Curateur public) c. Syndicat national des employés de l’Hôpital St-Ferdinand, [1996] 3 S.C.R. 211 (Accessed 2015-03-05).

10.   Murphy S. “NO MORE CHRISTIAN DOCTORS. Appendix C: Radical Handmaids Facebook Page Timeline”, T___ M___, 29 January, 2014, 6:56 pm.”
Protection of Conscience Project (March, 2014)

11.  Waldron, MA, “Campuses, Courts and Culture Wars.” Convivium, February/March 2014, p. 33

12.  The distinction between ethics and morality is mainly a matter of usage. Recent trends identify ethics as the application of morality to a specific discipline, like medicine or law. In a broader and older sense, ethics is concerned with how man ought to live, while the study of morality focuses on ethical obligations. See the entry on “Ethics and Morality” in Honderich T. (Ed.) The Oxford Companion to Philosophy (2nd Ed.) Oxford: Oxford University Press, 2005.

13.   “The question of neutrality has been profoundly obscured by the mistake of confusing neutrality with objectivity… neutrality and objectivity are not the same… objectivity is possible but neutrality is not. To be neutral, if that were possible, would be to have no presuppositions whatsoever. To be objective is to have certain presuppositions, along with the manners that allow us to keep faith with them.” Budziszewski J., “Handling Issues of Conscience.” The Newman Rambler, Vol. 3, No. 2, Spring/Summer 1999, P. 4.

Uniform coercive policy urged for all Canadian physicians

Project submission to the Saskatchewan College of Physicians discloses details

News Release

Protection of Conscience Project

The Protection of Conscience Project has charged that a controversial policy proposed by the College of Physicians and Surgeons of Saskatchewan is unjustified.

The policy, Conscientious Refusal, will require all Saskatchewan physicians who object to a procedure for reasons of conscience to facilitate the procedure by referring patients to a colleague who will provide it, even if it is homicide or suicide.

The Project noted that the burden of proof was on the policy’s supporters to prove that the policy is justified and that no less oppressive alternatives are available.  “They failed to do so,” states the submission. “The policy should be withdrawn.”

Conscientious Refusal fails to recognize that the practice of medicine is a moral enterprise, that morality is a human enterprise, and that physicians, no less than patients, are moral agents” said the Project, describing the policy as “profoundly disrespectful of the moral agency of physicians.”

Using documents provided by the College, the Project’s submission traces the origin of the policy to a meeting in 2013. The meeting was apparently convened by the Conscience Research Group (CRG), activist academics whose goal is to compel physicians unwilling to provide morally contested procedures like abortion or euthanasia to refer patients to someone willing to do so. They presented a coercive model policy that had been drafted to achieve that goal.

According to a CPSS memo, College attendees included Saskatchewan Associate Registrar Bryan Salte, Dr. Gus Grant, Registrar of the College of Physicians and Surgeons of Nova Scotia, Andréa Foti of the Policy Department of the College of Physicians and Surgeons of Ontario and a representative of the Collège des Médecins du Québec. They agreed upon a text virtually identical to the CRG model.

In May, 2014, Bryan Salte proposed the policy to Registrars of the Colleges of British Columbia, Alberta, Manitoba and Ontario, who, he reported, agreed to review it and consider implementing it. He later urged all of the Registrars of Colleges of Physicians in Canada to adopt the coercive policy or one very like it, noting that “physician assisted suicide, in particular” would be present a challenge for administrators.

“Any College that is an outlier, either because it has adopted a different position than other Colleges, or because it has not developed a policy, will potentially be placed in a difficult position,” he warned.

The CPSS memo discloses that, unbeknownst to physicians, officials in several provinces have been making plans behind closed doors to suppress freedom of conscience in the medical profession.

“One of the disturbing aspects of the story,” notes the submission, “is what appears to be a pattern of concealment, selective disclosure, and false or misleading statements that all serve the purpose of supporting the policy.”

The Project’s most recent submission to the College of Physicians and Surgeons of Ontario identifies a similarly troubling pattern, describing briefing materials supplied to College Council in support of its controversial policy as “not only seriously deficient, but erroneous and seriously misleading.”

Project Submission to the College of Physicians and Surgeons of Saskatchewan (2015)

Project Submission to the College of Physicians and Surgeons of Ontario (2015)

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Refusal

Abstract

The policy Conscientious Refusal requires all physicians who object to a procedure for reasons of conscience to facilitate the procedure by referring patients to a colleague who will provide it, even if it is homicide or suicide.  No evidence was provided to justify the policy.  None of the arguments provided to Council justify the policy, nor do the principles included in the text.

Conscientious Refusal fails to recognize that the practice of medicine is a moral enterprise, that morality is a human enterprise, and that physicians, no less than patients, are moral agents.

The original text virtually copied by Conscientious Refusal was written by believers: by people who believe that whatever is “legally permissible and publicly-funded” is morally acceptable- including euthanasia, assisted suicide and abortion. It is an assertion of those beliefs and an authoritarian attempt to compel others to conform to them. It is a partisan document that is profoundly disrespectful of the moral agency of physicians, not a compromise.

Conscientious Refusal advances the dangerous idea that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong and punish them if they refuse. This is not a limitation of fundamental freedoms, but a serious violation of human dignity. It is also incoherent, because it posits the existence of a moral or ethical duty to do what one believes to be wrong.

The Associate Registrar has made it clear that those who refuse to do what the policy demands will be disciplined by the College or forced out of the medical profession. This clashes seriously with the approach taken by the Supreme Court of Canada, which has affirmed that public policy must make room for physicians whose “concept of the good life” precludes their participation in abortion, euthanasia, assisted suicide or other morally contested procedures.

The burden of proof was on the Associate Registrar and the appointed committee to prove beyond doubt that Conscientious Refusal is justified and that no less authoritarian alternatives are available.  They failed to discharge that burden; neither has College Council discharged it. The policy should be withdrawn.


Contents

I.    Origin of the draft policy, Conscientious Refusal

II.    Content of the proposed policy

III.    Focus of this submission

IV.    Justification for the proposed policy

V.    The issues

VI.    Response to the issues

VII.    Discussion

VIII.    Conclusions

Appendix “A”: Origin of the CPSS Draft Policy

Appendix “B”:  Development of the CPSS Draft Policy

Appendix “C”: Interview of CPSS Associate Registrar

Appendix “D”:  Ontario, Alberta, Manitoba and Saskatchewan College Policies

Appendix “E”:  College of Physicians and Surgeons of Saskatchewan Re: Guideline: Unplanned Pregnancy

Appendix “F”:  Morally Significant Participation

Appendix “G”:  Notes on Referral, Abandonment and Fiduciary Duty

Project Submission to the College of Physicians and Surgeons of Ontario

 Re: Professional Obligations and Human Rights


Abstract

The focus of this submission about Professional Obligations and Human Rights (POHR) is its demand for “effective referral” – the demand that physicians do what they believe to be wrong – even gravely wrong – even arranging homicide or suicide – and the implied threat that they will be punished if they refuse.

This is a dangerous and extraordinarily authoritarian policy, completely at odds with liberal democratic aspirations and our national traditions. The burden of proof is on the working group to prove beyond doubt that it is justified and that no reasonable alternatives are available. The working group has not done so.

The working group provided no evidence that such a policy is necessary, and there is evidence that it is not. The briefing materials supplied to Council in support of POHR were not only seriously deficient, but erroneous and seriously misleading. “Public sentiment” captured by a random poll does not justify the suppression of fundamental freedoms, and the results of consultation, when carefully considered, suggest that a policy of “effective referral” is highly controversial.

An example of a reasonable alternative is available from the Australian Medical Association – an example not offered to Council members by the working group, which, instead, completely misrepresented AMA policy.

This submission, supported by detailed analysis in the appendices, provides good reason for Council members to doubt that the requirement for effective referral in POHR is necessary or justifiable, or prudent policy. It also provides reason for them to believe that reasonable alternatives can be developed.

Council members unpersuaded by the working group or left in doubt about POHR should give the benefit of doubt to freedom of conscience and refuse to approve the draft policy in its present form. They should direct the working group to collaborate with those opposed to the present draft to produce a broadly acceptable text. If the real goal is to ensure access – not ideologically driven ethical cleansing – there is no reason to demand that physicians do what they believe to be wrong. If the College’s real goal is to ensure access to services – not to punish objecting physicians, or drive them out of family practice, or out of the profession – that goal is best served by connecting patients with physicians willing to help them.

Contents

  1. Introduction
  1. Reasons for doubt

III.    POHR in practice

  1. Giving freedom of conscience the benefit of the doubt
  2. Conclusion

Appendix “A”:  The Review Process

Appendix “B”:  Unreliability of Jurisdictional Review by College Working Group

Appendix “C”:  Consultation on Physicians and the Human Rights Code

Appendix “D”: A Case for Evidence-based Policy Making

Appendix “E”: Legal Criticism

Full text available on line at https://news.consciencelaws.orgpublications/submissions/submissions-013-001-cpso.aspx.

What is plagiarism? Saskatchewan College of Physicians provides “teachable moment” for students, teachers

Sean Murphy*

High school and post-secondary teachers plagued by the problem of plagiarism can thank the College of Physicians and Surgeons of Saskatchewan for providing them with a “teachable moment.”

Saskatchewan’s College of Physicians has published a draft policy intended to force objecting physicians to do what they believe to be wrong, including participation in euthanasia, assisted suicide, and abortion.  The policy is virtually a word-for-word copy of the Model Conscientious Objection Policy proposed by euthanasia and abortion activists – without attribution.

Bryan Salte, speaking for the College, denied that the College document was taken from the Model Conscientious Objection Policy, though he did admit that it was a “significant source.”

Now Saskatchewan students have a comeback for teachers who award a “0” for plagiarism because they have copied most of a paper from a “significant source” on the internet.  They can quote Mr. Salte.

On the other hand, Saskatchewan teachers might take this as a “teachable moment”  to explain that it is unethical to pass off someone else’s work as one’s own – even if one likes it and agrees with it entirely and the real authors are pleased with the results.

It might even be a good topic for a class on ethics in medical research.