Category: Ethical Commentary

“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.

American Medical Association provides details of new freedom of conscience policy

AMA submission to Ontario College of Physicians an improvement on quality of briefing by College working group

Sean Murphy*

The American Medical Association has made a submission to the public consultation on physician freedom of conscience being conducted by the College of Physicians and Surgeons of Ontario (CPSO).  The AMA letter provides important details about a policy on physician freedom of conscience adopted by the AMA House of Delegates in November, 2014, but not due to be formally published until June of this year.

The current consultation on a controversial draft policy, Professional Obligations and Human Rights (POHR), was approved by College Council in December, 2014.  Briefing materials provided to Council members by the College working group at that time included the American Medical Association as one of the organizations selected for international comparison of policies.

However, the single sentence offered by the working group as representative of AMA policy was taken from an on-line source of short essays about medical ethics, not an authoritative source of information about AMA policy. In fact, the article was about conscientious objection among pharmacists, not about the policies of the American Medical Association concerning freedom of conscience in health care.

The letter from the AMA is a substantial improvement upon what the Protection of Conscience Project submission characterizes as the “deficient and superficial” briefing materials concerning the United States supplied to College Council in December.

. . .In the Council’s view, an account of the nature and scope of a physician’s duty to inform or to refer when a patient seeks treatment that is in tension with the physician’s deeply held personal beliefs must address in a nuanced way the question of moral complicity. The Council concurs that physicians must provide information a patient needs to make a well-considered decision about care, including informing the patient about options the physician sincerely believes are morally objectionable. However, the Council sought to clarify that requirement, holding that before initiating a patient-physician relationship the physician should “make clear any specific interventions or services the physician cannot in good conscience provide because they are contrary to the physician’s deeply held personal beliefs, focusing on interventions or services that a patient might otherwise reasonably expect the practice to offer.”

The Council also reached a somewhat different conclusion than the College with respect to a duty to refer.

The College’s draft policy provides that, when a physician is “unwilling to provide certain elements of care on moral or religious grounds,” the physician must provide “an effective referral” to “a nonobjecting, available, and accessible physician or other health care provider.”

This seems to us to overstate a duty to refer, risk making the physician morally complicit in violation of deeply held personal beliefs, and falls short of according appropriate respect to the physician as a moral agent. On our view, a somewhat less stringent formulation of a duty to refer better serves the goals of non-abandonment, continuity of care, and respect for physicians’ moral agency. The council concluded that:

In general, physicians should refer a patient to another physician or institution to provide treatment the physician declines to offer. When a deeply held, well-considered personal belief leads a physician also to decline to refer, the physician should offer impartial guidance to patients about how to inform themselves regarding access to desired services.

On the Council’s analysis, the degree or depth of moral complicity is defined in part by ones “‘moral distance’ from the wrongdoer or the act, including the degree to which one shares the wrongful intent.”

Other factors also influence complicity, including “the severity of the immoral act, whether one was  under duress in participating in the immoral act, the likelihood that one’s conduct will induce others to act immorally, and the extent to which one’s participation is needed to facilitate the wrongdoing.” . . .

An attack on the conscience rights of physicians

National Post
Reproduced with permission

John Carpay

Ontario’s College of Physicians and Surgeons is determined to force every family doctor to participate in abortion and euthanasia, either by providing these services, or by referring patients to other doctors who will.

The College dismisses Charter-protected conscience rights as “personal values and beliefs” that are not nearly as important as “clinical” beliefs. This distinction is wholly artificial, as shown by the very existence of modern medical ethics. There is nothing clinical or scientific about the moral prescriptions in the Hippocratic Oath: To “take care that patients suffer no hurt or damage” and to “use knowledge in a godly manner.” This “sacred oath” cuts across religious, philosophical, and political boundaries, and has been the bedrock of the physician’s pledge to his patients and society for over two millennia.

Medical ethics, both ancient and modern, are based entirely on religious and moral beliefs. A doctor guided by science to the exclusion of morality is inherently untrustworthy. A good doctor acts on both moral and scientific beliefs.

The college’s draft policy on doctors’ professional obligations assumes that patients have a “right” to receive whatever medical services they may desire from any doctor. The college provides no basis for this assumption, because, in fact, patients do not enjoy a legal right to obtain whatever medical services or treatments they want.

The college’s justification for coercing pro-life doctors into referring patients for abortion or euthanasia services relies heavily on Ontario’s Human Rights Code. But the code says nothing about which medical procedures should be available to patients, or whether all doctors must be willing to provide them. The code merely requires doctors to serve all patients equally, regardless of the patient’s age, race, gender, religion, etc. The code would, for example, prohibit a pro-choice doctor from providing abortions only to patients of some ethnic groups, but not others.

The college then jumps to the argument that a doctor’s Charter-protected freedom of conscience and religion needs to be “balanced” against a patient’s “right” to receive desired services from every doctor. But there is no need to balance a Charter right against another right that doesn’t exist.

The college claims that refusing to participate in abortion and euthanasia amounts to “impeding” access. This argument is quite a stretch. If a doctor refuses to prescribe an abortion-inducing drug to a patient, that doctor is certainly causing the patient inconvenience. But in no way is that doctor “impeding” the patient from obtaining the drug from other doctors, the vast majority of whom routinely prescribe such drugs.

While claiming to be concerned about patients’ access to health care, the college ignores the Supreme Court’s ruling in Chaoulli v. Quebec, which declared that “access to a waiting list is not access to health care.” The court in Chaoulli was unanimous in holding that a government monopoly over health care, when it condemns patients to suffer and die on waiting lists, violates the constitutional rights of Canadians.

When it comes to essential health services like cancer diagnosis, cancer treatment and orthopaedic surgery, politicians in Ontario and other provinces have passed laws that make it effectively illegal for patients to use their own after-tax dollars to buy private medical services and private health insurance. The college is not troubled by the fact that patients are entirely at the mercy of the bureaucrats and politicians who run the Ontario government’s health-care monopoly, and who alone decide what medical services patients will and will not have access to.

In short, the college’s attack on physicians’ conscience rights has nothing to do with patients’ access to health care. In light of the willingness of most doctors to provide or refer for abortion and euthanasia, the minority of pro-life doctors are making a statement, not impeding access. But rather than advocate for expanded access to all kinds of health care for all patients, the college acts ideologically to remove all visible opposition to its own popularly accepted moral beliefs. This ideological attack strikes at the root of Canada’s free society, which should welcome the full participation of all persons, even those with unpopular convictions.

 

The Carter v. Canada Conundrum: Next Steps for Implementing Physician Aid-in-Dying in Canada

Sally Bean and Maxwell Smith (Bioethics Program Alum, 2010)

We applaud the February 6, 2015 Supreme Court of Canada’s (SCC) unanimous ruling in Carter v. Canada (Attorney General), 2015 SCC 5. The Court found the criminal prohibition of assisted death to be in violation of section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. The ruling has been suspended for 12 months to enable time for a Parliamentary response. In the wake of this landmark ruling, we identify and briefly discuss three issues that require serious attention prior to the implementation of Physician Aid-in-Dying (PAD) in Canada. . . [Full text]

 

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Evangelical Fellowship of Canada

The Evangelical Fellowship of Canada (EFC) welcomes this opportunity to participate in the dialogue about the College of Physician and Surgeons (CPSO) draft policy on “Professional Obligations and Human Rights.” The EFC is a national association of denominations, ministry organizations, post-secondary educational institutions including universities, seminaries and colleges, and local congregations. Some of our affiliates provide medical and health care in Canada and overseas, and many physicians are members of our affiliated denominations. The Christian Medical Dental Society (CMDS) is an affiliate of the EFC and we endorse the submission made by the CMDS and the Canadian Federation of Catholic Physician Societies (CFCPS) dated February 11, 2015.

The EFC is active in promoting the religious freedom of all persons. We agree that physicians ought to respect the rights and freedoms, and the diversity of all patients, and treat all with the same respect and dignity.

We also affirm the rights and freedoms of physicians and surgeons, including their freedom of conscience and religion. Our concern with the draft policy is that it requires doctors to provide an effective referral for services, and in some situations, undertake procedures that violate the conscience and/or religious beliefs of some doctors.

The freedoms of patients and of doctors are protected under the Charter of Rights and Freedoms (Charter).The CPSO is bound by the Charter and must not enforce policies that violate the rights or freedoms of either its members or their patients. It must make every effort to ensure that a system is in place to ensure that a physician is not compelled to participate in undertaking procedures or prescribing pharmaceuticals that violate their freedom of conscience and religion.

As noted in the brief of the CMDS and the CFCPS, there is no right for a patient to demand and receive a particular service from a specific physician. It is the health care system that is obligated, not the individual physician, and the system established for the delivery of services must respect the diversity and plurality of both those who access the system and those who provide the services. The onus is on the health care system, and in this case the CPSO, to devise policies that respect and accommodate the Charter rights and freedoms of both the patients and the physicians. We are concerned that under the proposed policy the burden is being placed on the individual physician when it is the CSPO which is bound by the Charter and has a duty to accommodate the Charter rights of both patients and the physicians. The CPSO policy must balance the rights of all involved and ensure the rights and freedoms of all are respected and accommodated.

The draft policy refers to the Ontario Human Rights Code (Code) which sets out the rights of Ontario residents to receive treatment without discrimination. However, the
Code does not compel a service provider to provide all services demanded by a client or customer. If a service is not offered, whether it be a particular food in a restaurant or a certain type of repair by a mechanic, there is no discrimination as long as all customers are treated the same. Human rights codes are intended to protect people seeking a service from being denied that service if it is otherwise offered to others. A physician refusing to undertake a certain procedure which violates his or her conscience or religious beliefs does not constitute discrimination toward the patient seeking a treatment the physician does not offer.

Further, providing an effective referral involves more than providing information about clinical options. Providing a referral means the doctor is convinced that in their judgment the best interest of the patient is served by a particular course of medical treatment or procedure. By providing the referral, the doctor is taking direct action and is, in effect, prescribing a course of action or treatment for a patient. Some doctors believe that providing an effective referral is morally the same as providing the course of action or treatment itself. To compel them to do so, then, is a violation of their rights and freedoms.

All doctors, including those with deep religious convictions, desire to serve their patients in an open and non-discriminatory manner. In a religiously, ethnically, culturally and morally plural society, the duty to accommodate extends to all, both to the patient and the physician.

One of the key values identified in the draft policy is trustworthiness. Compelling a physician to undertake a procedure or to refer a patient for a procedure that they do not believe is in the best interest of their patient, and which may harm their patient, undermines this value. Forcing a physician to violate their conscience undermines the moral integrity of the physician and the honest, respectful and open relationship that should exist between the patient and physician.

We urge the CPSO to revise the draft policy to ensure the Charter rights and freedoms
of all impacted by the policy are affirmed and respected.