Category: Commentary

Why this is a vital matter of conscience

Daily Mail

Lord Alton

Call The Midwife has become a national institution, and is the BBC’s most popular drama.

Up to ten million people tune in to this heart-warming serial, and its stars, such as Jenny Agutter and Helen George, have reminded people what a high calling it is to bring children into the world.

Yet I think that many viewers would be horrified to realise that today, in 21st century Britain, midwives can lose their jobs unless they are willing to facilitate abortions  –  even though, in ending the life of an unborn child, they must do something that is instinctively the opposite of their calling.

To put a midwife  –  or any other healthcare professional  –  in that invidious position is to me wholly unacceptable. It is almost totalitarian. . .[Full Text]

Apparently it’s OK to violate doctors’ Charter rights

National Post
Reproduced with permission

Raymond J. de Souza

What happens to fundamental rights when a free and democratic society ceases to be one? That’s the question raised by a decision of the Ontario Superior Court last week.

The court was petitioned by doctors who want nothing to do with “medical assistance in dying,” namely they do not want to use their expertise and professional status to procure the death of their patients. The College of Physicians and Surgeons of Ontario (CPSO) has a policy that requires physicians who do not want to administer lethal treatment to their patients to arrange for their patients to see someone who will. It’s called an “effective referral.” Doctors are therefore mandated to “effect” something that they object to.

Consider a patient who, after a bit of intensive internet research, asks his doctor for a particular drug or course of therapy. The doctor refuses. In her professional judgment the treatment is not in the best interests of the patient. The patient then asks the doctor to arrange for that same treatment from another physician, to “effect” that treatment despite her judgment that it is not appropriate.

The doctor would likely remind the patient that he is free to seek a second opinion, or even seek out another doctor altogether. But the patient’s wish does not override her professional opinion; the doctor is not a waiter taking an order.

What if the patient instead asks to be killed? Then, according to the CPSO, the doctor becomes a service provider, not a professional with a different judgment, much less a citizen with conscientious objections. A doctor can refuse to prescribe the latest weight-loss drug, but must “effect” a lethal injection.

The court, in a unanimous decision, found that the CPSO policy violates doctors’ charter right to religious freedom. (It did not rule on freedom of conscience, but presumably the same would apply.) It further found that the infringement was neither “trivial” or “insubstantial.”

So the court found a serious infringement of a fundamental freedom guaranteed by the charter, and yet upheld the “effective referral” policy, finding that it was a “reasonable limit on religious freedom, demonstrably justified in a free and democratic society.”

Reasonable to whom? Not to the physician who finds abortion abhorrent, and now must to some degree facilitate it. Not to the doctor who wants her infirm patients to know that she would never hasten their deaths, but now is required to co-operate in just that.

The charter permits infringements on rights that are “demonstrably justified in a free and democratic society.” But what happens when society is no longer keen on certain freedoms or certain democratic rights? Or at least when the judges hearing the case think fundamental freedoms not quite so fundamental after all?

The Ontario judges simply decided that they did not think (in this case) that the right to religious freedom was that important. How do we know that? Because the judges accepted that there is “no evidence that conscientious objection results in a failure of access.” So even though a religious or conscientious objection does not impede what a particular policy is attempting to provide, it still can be infringed upon.

Indeed, what makes the Ontario decision all the harder to fathom is that in other provinces there is no equivalent of the CPSO “effective referral” policy. In the internet age, it is not hard for willing doctors to make themselves known. In some provinces the government itself keeps a registry that patients can access. There is no need — as currently demonstrated in other parts of Canada — to force doctors to effect that to which they object.

The only logic that holds the Ontario decision together is that freedom of religion and freedom of conscience are relatively unimportant in a “free and democratic society.” Indeed, the CPSO decision sets the bar of “reasonable limits” so low that it is hard to imagine what would constitute an unreasonable limit.

The answer to that of course is clear, though left unstated. An unreasonable limit is one the judges don’t like. A reasonable one is one that they do.

A palliative-care physician in Ontario who does not wish to participate in assisted suicide now has very good reason to move to Alberta, where she will not be required to effect it. How that helps patients in Ontario is not clear.

It is all quite unreasonable. At least it would be in a free and democratic society.

 

Canadian court tells doctors they must refer for euthanasia

Will they be hounded out of their profession?

Mercatornet

Michael Cook

For years bioethicists of a utilitarian cast have argued that conscientious objection has no place in medicine. Now Canadian courts are beginning to put their stamp of approval on the extinction of doctors’ right to refuse to kill their patients.

The Superior Court of Justice Division Court of Ontario ruled this week that if doctors are unwilling to perform legal actions, they should find another job.

A group of five doctors and three professional organizations were contesting a policy issued by Ontario’s medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), arguing it infringed their right to freedom of religion and conscience under Canada’s Charter of Rights and Freedoms.

However, Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel:

“the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.

“Those who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.”

At issue is the policy of “effective referral”. A doctor who objects to participating in euthanasia cannot be forced to do it. But he is expected to pass the patient to another doctor who will. The CPSO argues that effective referral is necessary “to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.”

Without the policy of effective referral, equitable access would be “compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services,” Justice Herman Wilton-Siegel wrote. People in remote communities might request euthanasia. If their doctor refused, they might suffer needlessly and taxpayers would have to foot the bill to subsidise the refusnik’s conscience.

It is remarkable how closely Justice Wilton-Siegel’s text hews to the arguments of bioethicists who have been chipping away at the right to conscientious objection for years.

In 2005 American legal scholar Alta Charo described conscientious objection as “an unfettered  right to personal autonomy while holding monopolistic control over a public good … an abuse of the public trust—all  the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest’.

In 2006 Oxford’s Julian Savulescu argued in the BMJ that “when conscientious objection compromises the quality, efficiency, or equitable delivery of a service, it should not be tolerated”.

More recently, Canadian bioethicist Udo Schuklenk and a colleague contended in the BMJ that

“If at any given time a doctor is unable to continue practicing due to their—ultimately arbitrary—conscience views, nothing would stop them from leaving the profession and taking up a different vocation. This happens across industries and professions very frequently. Professionals can be expected to take responsibility for the voluntary choices they make.”

Responding to the ruling, Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said: “We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.”

The case is sure to be appealed, but if the doctors championing conscientious objection fail, the consequences will be dire.

Throughout Canada, doctors would be required to refer for euthanasia. If they refuse, they will be hounded out of their profession, or, at best, shunted into specialties where the question will not arise, like pathology or dermatology.

This ruling shows how quickly tolerance vanishes after euthanasia has been legalised. In the Carter decision which legalised it, Canada’s Supreme Court explicitly stated that legalizing euthanasia did not entail a duty on the part of physicians to provide it. Now, however, 18 months and more than a thousand death after legalisation, conscientious objection is at risk.

It also shows how vulnerable religious-based arguments can be. The plaintiffs contended that referring patients violated their right to religious freedom. While this is true, is this the main ground for conscientious objection? As several doctors pointed out in the Canadian Medical Association Journal last year, “Insofar as all refusals of therapy are ultimately justified by the ethical belief that the goal of therapy is to provide benefit and avoid harm, all treatment refusals are matters of conscience.”

This article is published by Michael Cook and MercatorNet under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to MercatorNet. Commercial media must contact MercatorNet for permission and fees.

Changes to abortion provision means NHS staff need more legal protection

The Herald

Dr. Mary Neal

FREEDOM of conscience is an important fundamental freedom recognised in international treaties but current protection for conscientious objection by health professionals in UK domestic law is inadequate.

Some professionals have statutory ‘protection’ that is so narrow. This was exposed by the UK Supreme Court’s judgment in the Glasgow midwives’ case. The court held that ‘hands off’ involvement in terminations was not covered by the statutory conscience right in the Abortion Act 1967, so that individuals had no right to refuse to enable and support the process in indirect ways. . . [Full Text]

Why would my terminally ill father be denied a medically assisted death?

The Globe and Mail

Paul Taylor

The question: My father was in the advanced stages of prostate cancer and wanted a medically assisted death. He was told he needed the approval of two health-care providers. One said yes, but the other said no because he “was not in any distress.” But that decision was so wrong. My father was a very stoic man, and was not one to complain. Did the doctor want him to break down in tears and beg to be put to death? My father died two weeks later in a hospice – instead of his home, the place where he wanted to die.

The answer: It has been over a year and a half since Parliament passed a law that makes medical assistance in dying – called MAID for short – legal across Canada. The story you tell reflects one of the many challenges in creating a standardized system to handle these requests and to ensure that patients and their families are properly informed.

One key failing in your father’s case is that he was not apparently told he could have asked for another assessment after the second MAID assessor turned him down. If another assessor had agreed that he was eligible, he could have proceeded with an assisted death.

It’s impossible to say whether his assessors were unaware he had this option or simply failed to mention it.

Whatever the case, “we need to do a better job educating health-care providers about what they must be disclosing to patients,” says Jocelyn Downie, a professor in the faculties of law and medicine at Dalhousie University in Halifax.

In the meantime, it’s certainly worthwhile reviewing how the process is supposed to work. . . [Full Text]