Publications Archives - Page 14 of 29 - Protection of Conscience Project News

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]

Project advisor awarded honour by state of Indiana

Dr. Shahid Athar receives Golden Hoosier Award

Dr. Shahid Athar, who has been an adviser to the Project from its inception, has received the state of Indiana’s Golden Hoosier Award.

Indiana has annually honoured selected senior citizens for their lifetime of service and commitment to their communities since 2008. The Golden Hoosier Award is considered one of the highest honours given by the State of Indiana to senior citizens.

Dr. Athar was nominated by Pastor Jerry Zehr and Razzi Nalim. The award citation states:

Dr. Shahid Athar serves his community as a volunteer physician for Indianapolis’s homeless, HIV patients and other individuals who may not be able to afford medical treatment. In addition, he serves as a board member for the Protection of Conscience Project, St. Vincent Ethical Committee, and the Islamic Medical Association of North America. Most notably, Dr. Athar is known for his advocacy of interfaith as a way to overcome terrorism and to help Hoosier Muslims deal with the negative fallout of the attacks on September 11, 2001. Dr. Athar is highly regarded among his peers and his community. Whether he is providing professional medical care for the needy, or presenting on interfaith, he always leads by example and with compassion for others. His generosity has left a lasting impression on Hoosiers of all faiths.

The term “Hoosier” means a resident of Indiana.

Tunnel vision at the College of Physicians

National Post

Sean Murphy*

The College of Physicians and Surgeons of Ontario has adopted a policy requiring physicians who have moral or ethical objections to a procedure to make an “effective referral” of patients to a colleague who will provide it, or to an agency that will arrange for it. In 2008, amidst great controversy, the Australian state of Victoria passed an abortion law with a similar provision.

After the law passed, a Melbourne physician, morally opposed to abortion, publicly announced that he had refused to provide an abortion referral for a patient. This effectively challenged the government and medical regulator to prosecute or discipline him. They did not. The law notwithstanding, no one dared prosecute him for refusing to help a woman 19 weeks pregnant obtain an abortion because she and her husband wanted a boy, not a girl.

They obtained the abortion without the assistance of the objecting physician, and they could have done the same in Ontario. College Council member Dr. Wayne Spotswood, himself an abortion provider, told Council that everyone 15 or 16 years old knows that anyone refused an abortion by one doctor “can walk down the street” to obtain the procedure elsewhere.

So why did the College working group that drafted the demand for “effective referral” urge College Council to adopt a policy that so clearly has the potential to make the College look ridiculous? . . .[Full text]

Gagging conscience, violating humanity

Sean Murphy*

Introduction

In 2008, when the Council of the College of Physicians and Surgeons of Ontario was considering the final draft of an earlier policy, Physicians and the Human Rights Code, a member of the Council seems to have been troubled by the policy direction being given to the Colllege by the Ontario Human Rights Commission (OHRC).

Speaking during the Council meeting, he drew his colleagues’ attention to a chilling New England Journal of Medicine article by Holocaust survivor, Elie Wiesel: “Without conscience.”1 It was about the crucial role played by German physicians in supporting Nazi horrors. “How can we explain their betrayal?” Wiesel asked. “What gagged their conscience? What happened to their humanity?”2

Now, however, to the applause of the OHRC,3 the College of Physicians and Surgeons of Ontario has approved a policy to gag the consciences of physicians in the province,4 and Saskatchewan is next in line.5 We may soon begin to discover the answers to Wiesel’s questions.

There is no duty to do what is believed to be wrong.

Policies like those adopted in Ontario and proposed in Saskatchewan are incoherent because they purport to include a duty to do what one believes to be wrong in a code of ethics or ethical guidelines, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing.

Beyond this, when discussion about difficulties associated with the exercise of freedom of conscience in health care is repeatedly characterized as “the problem of conscientious objection,”6 it becomes clear that the underlying premise is that people and institutions ought to do what they believe to be wrong, and that refusal to do what one believes to be wrong requires special justification. This is exactly the opposite of what one would expect. Most people believe that we should not do what we believe to be wrong, and that refusing to do what we believe to be wrong is the norm. It is wrongdoing that needs special justification or excuse, not refusing to do wrong.

The inversion is troubling, since “a duty to do what is wrong” is being advanced by those who support the “war on terror.” They argue that there is, indeed, a duty to do what is wrong, and that this includes a duty to kill non-combatants and to torture terrorist suspects.7 The claim is sharply contested,8 but it does indicate how far a duty to do what is wrong might be pushed. In Quebec, in Ontario and in Saskatchewan it is now being pushed as far as requiring physicians to participate in killing patients, even if they believe it is wrong: even if they believe that it is homicide.9

This reminder is a warning that the community must be protected against the temptation to give credence to the dangerous idea that is now being advanced by medical regulators in Canada: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong – even gravely wrong – and punish them if they refuse.

Forcing someone to do wrong is a violation of humanity, not a limitation of freedom.

Attempts to suppress freedom of conscience and religion in the medical profession are often defended using a statement of the Supreme Court of Canada: “the freedom to hold beliefs is broader than the freedom to act on them.”10

The statement is not wrong, but it is inadequate. It is simply not responsive to many of the questions about the exercise of freedom of conscience that arise in a society characterized by a plurality of moral and political viewpoints and conflicting demands. More refined distinctions are required. One of them is the distinction between perfective and preservative freedom of conscience, which reflects the two ways in which freedom of conscience is exercised: by pursuing apparent goods and avoiding apparent evils.11

It is generally agreed that the state may limit the exercise of perfective freedom of conscience if it is objectively harmful, or if the limitation serves the common good. Although there may be disagreement about how to apply these principles, and restrictions may go too far, no polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected.

If the state can legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong. There is a significant difference between preventing someone from doing the good that he wishes to do and forcing him to do the evil that he abhors.

We have noted the danger inherent in the notion of a “duty to do what is wrong.” Here we add that, as a general rule, it is fundamentally unjust and offensive to suppress preservative freedom of conscience by forcing people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that no limit can ever be placed on preservative freedom of conscience. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

None of these conditions have been met in Ontario or in Saskatchewan.

[PDF Text]

Notes:

1. Email to the Administrator, Protection of Conscience Project, from P__ H__ (present at College Council meeting 18 September, 2008) (2014-02-11, 10:10 am)

2. Wiesel E. “Without Conscience.” N Engl J Med 352;15 april14, 2005 (Accessed 2014-02-24)

3. Letter from the Office of the Chief Commissioner, Ontario Human Rights Commission, to the College of Physicians and Surgeons of Ontario, dated 19 February, 2015, Re CPSO Draft Policy: Professional Obligations and Human Rights

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

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

6. For example, Cannold L. “The questionable ethics of unregulated conscientious refusal.” ABC Religion and Ethics, 25 March, 2011. (Accessed 2013-08-11)

7. Gardner J. “Complicity and Causality,” 1 Crim. Law & Phil. 127, 129 (2007). Cited in Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.” New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

8. Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.” New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)

9. Quebec has already passed a law purporting to legalize euthanasia: Murphy S. “Redefining the Practice of Medicine- Euthanasia in Quebec, Part 9: Codes of Ethics and Killing.” Protection of Conscience Project, July, 2014. The Supreme Court of Canada has ordered legalization of physician assisted suicide and physician administered euthanasia. When the ruling takes effect in early 2016, the Ontario and Saskatchewan policies, as written, will have the effect of forcing physicians unwilling to kill patients or help them kill themselves to find a colleague willing to do so.

10. Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 (Accessed 2014-07-29)

11. This section of the paper draws from an extended discussion of the subject in Murphy S, Geunis S.J. “Freedom of Conscience in Health Care: Distinctions and Limits.” J Bioeth Inq. 2013 Oct; 10(3): 347-54