Category: Legal Commentary

When can a doctor conscientiously object?

America

Bernard G. Prusak*

Over the last decade, the culture wars in the United States have broken new ground: They have become battles over the rights of conscience. For example, now that same-sex marriage is a right, the question before the U.S. Supreme Court in the case of Masterpiece Cakeshop is whether its sympathetic, telegenic owner, Jack Phillips, is within his rights to refuse to make a wedding cake for a gay couple. Similarly, under the Obama administration, the court heard arguments more than once over whether employers who object on religious grounds to contraceptives or abortion should be exempted from having to provide employees health insurance that includes such services.

By contrast, debates over conscientious objection in medicine have not had the same notoriety, though they have broken out repeatedly among health care professionals and medical ethicists since the turn of the century, when there was a flare-up over pharmacists’ refusing to fill prescriptions for emergency contraceptives.

A bill currently before the House of Lords has brought conscientious objection in medicine into widespread public discussion in the United Kingdom, if not yet on the other side of the Atlantic. . . [Full text]

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]

Has stopping eating and drinking become a path to assisted dying?

Policy Options

Jocelyn Downie

Can patients, by stopping eating and drinking, make themselves meet the criteria for a “grievous and irremediable medical condition,” the requirement to access MAiD?

Ms. S. was a 56-year-old woman with advanced multiple sclerosis. In June 2016, when her suffering became intolerable and her state of decline was advanced as a result of her incurable medical condition, she asked Dr. Ellen Wiebe for medical assistance in dying (MAiD). Ms. S. had earlier declined potentially effective treatment. Dr. Wiebe concluded that Ms. S. met most of the eligibility criteria for MAiD in Canada: incurable condition, advanced state of decline in capability, and enduring and intolerable suffering not remediable by any means acceptable to her. However, as she did not believe that Ms. S. would die “in the foreseeable future,” she deemed her not to meet the final eligibility criterion for MAiD: “natural death has become reasonably foreseeable.” Ms. S. asked again for MAiD in December 2016 and January 2017 and each time she was deemed ineligible on the same grounds. . . [Full Text]

Medics should not be forced to do procedures they object to on ethical grounds

The Conversation
Reproduced with permission

David S. Oderberg*

For most people, the term “conscientious objection” evokes images of Quakers and pacifists registering to avoid military service. Many countries have a long and honourable tradition of accommodating such conscientious objectors. It might not be about bombs and bullets, but healthcare professionals often find themselves fighting a conscience battle of their own.

In the UK, Canada, Sweden and other countries, conscientious objectors in healthcare have found themselves discriminated against in various ways – whether through dismissal, lack of promotion, or more subtle forms of coercion. Most cases involve doctors, nurses or midwives refusing to perform abortion or euthanasia (or to assist with either). Yet these happen, through historical accident, to be the flashpoint of current controversy. . . [Full text]

The courts keep inventing new rights, turning our Charter on its head

National Post
Reproduced with permission

John Carpay

If I told you that I wanted to rob a home or store, would you sell me a gun? Presumably not. But what about giving me the name and contact info of another person who is willing to sell me a gun? If you wanted to avoid any participation in my planned robbery, you would refuse to provide a referral.

When it comes to female genital mutilation (the cutting and removal of some or all of a young girl’s external genitalia) the College of Physicians and Surgeons of Ontario (CPSO) recognizes that referring is as bad as providing. The CPSO prohibits this practice, common in many African and Middle Eastern countries. Female genital mutilation causes infection, disease and death in many girls, and life-long health problems for millions of women.

The CPSO policy prohibits physicians from performing, and from referring for, female genital mutilation procedures. Both performing and referring constitute professional misconduct. The reasoning is obvious. If mutilating a girl is wrong, then it’s also wrong to provide a referral for this barbaric procedure.

College of Physicians and Surgeons of Ontario in Toronto, Ont. on Tuesday April 9, 2013.

Sadly, the CPSO abandoned this common-sense approach in the case of Christian Medical and Dental Society vs. CPSO. This court case was about a challenge to the CPSO policy requiring all doctors in Ontario to provide referrals for abortion, assisted suicide, and other medical procedures which some doctors view as harmful to patients and morally wrong. In court the CPSO argued that “a referral is neither an endorsement of the service for which the referral is provided, nor a guarantee that it will be provided.” The CPSO argued that providing a referral is trivial and insignificant, so a doctor would not be violating her conscience when referring a patient for a procedure that the doctor considers harmful. If the CPSO’s courtroom arguments are true, then why prohibit referring for female genital mutilation?

The Ontario Superior Court of Justice ruled that the CPSO policy violates the Charter freedom of religion and conscience, but then justified this violation as necessary to ensure “equitable” access to health-care services.

Abortion and assisted suicide are both legal medical procedures. Plenty of doctors are available to provide the one, the other, or both. Having to ask two, three or more doctors for a particular medical service is inconvenient for patients, to be sure.

But does the Charter provide citizens with a legal right to be free from inconvenience? Beyond a bald declaration, the court provides no explanation as to how or why being inconvenienced is a violation of the Charter. Nor does the court explain why it is necessary to force every single doctor in Ontario to provide referrals for abortion and assisted suicide. In other words, even if many doctors refuse to provide referrals for these services, the public would still have ready access to both.

The purpose of the Charter is to protect citizens from government. For example, the Charter should protect health-care workers (and everyone else) from being pressured or coerced by a government body to do what one believes to be wrong.

Conversely, there is no Charter right to force another human being to provide a service that runs contrary to their conscience. Interactions between citizens should be free from coercion. A patient’s power to compel a doctor to do what the doctor believes to be harmful is as destructive as a doctor’s power to compel a patient to do what the patient believes to be harmful.

The doctors who challenged the CPSO policy were not merely asking the court to be spared an inconvenience. Rather, an Ontario doctor who refuses to violate her conscience risks expulsion from the medical profession.

In upholding the CPSO policy, the court confuses fundamental Charter freedoms with personal interests and desires. The court has dismissed the Charter’s protection from government coercion as less important than a newly invented “right” to compel our fellow citizens (in this case doctors) to do what we want them to do. The court has turned the Charter on its head.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (Jccf.ca), which intervened in Christian Medical and Dental Society of Canada vs. College of Physicians and Surgeons of Ontario.