Tag: Sean Murphy

Science, religion, public funding and force feeding in modern medicine

Sean Murphy*

Responding to Bronca, T. “A conflict of conscience: What place do physicians’ religious beliefs have in modern medicine.” Canadian Health Care Network, 26 May, 2015.

Tristan Bronca writes, “Belief without evidence is becoming incompatible with scientific sensibilities.”1

This notion might be exemplified by Dr. James Downar. Advocating for physician assisted suicide and euthanasia in Canadian Family Practice, he described himself as “a secular North American who supports individual autonomy, subject only to limitations that are justifiable on the basis of empirically provable facts.”2

Dr. Downar’s “Yes” was opposed by Dr. Edward St. Godard’s “No.”3 Since both are palliative care specialists, their differences on the acceptability of physician assisted suicide and euthanasia are not explained by differences in their clinical experience, but by their different moral or ethical beliefs.

However, neither Dr. Downar’s beliefs nor Dr. St. Godard’s can be justified “on the basis of empirically provable facts.” Nor can Dr. Downar’s support for individual autonomy, since empirical evidence demonstrates the primacy of human dependence and interdependence – not autonomy. Empirical evidence can provide raw material needed for adequate answers to moral or ethical questions, but it cannot answer them. As Dr. McCabe told Tristan Bronca, science is necessary – but not sufficient. Moral decision-making requires more than facts.

And the practice of medicine is an inescapably moral enterprise. Every time they provide a treatment, physicians implicitly concede its goodness; they would not otherwise offer it. This is usually unnoticed because physicians habitually conform to standards of medical practice without adverting to the beliefs underpinning them. Hence, the demand that physicians must not be allowed to act upon beliefs is unacceptable because it is impossible; one cannot act morally without reference to beliefs.

But Tristan Bronca asks specifically about whether or not religious beliefs belong in medical practice in a secular society. On this point, the Supreme Court of Canada is unanimous: “Yes.”

“Everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic or religious,” Mr. Justice Gonthier wrote in Chamberlain v. Surrey School District No. 36. “To construe the ‘secular’ as the realm of the ‘unbelief’ is therefore erroneous.”

“Why,” he asked, “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.”4

Thus, to argue that a “secular” society excludes religious belief perpetuates an error that contributes significantly to climate of anti-religious intolerance.

Public funding of services is beneficial for patients, but quite distinct from physician obligations. After all, physicians provide many kinds of elective surgery and health services that are not publicly funded, and physicians are not paid for publicly funded services that they do not provide. Besides, our secular society taxes both religious and non-religious believers, so both have equal claims on “public dollars.”

Science, religion, public funding and force feeding in modern medicine

Most important, public funding does not prove that a procedure is morally or ethically acceptable, any more than public funding proves that force-feeding prisoners in Guantanamo Bay is acceptable. Perhaps that point will come up in military proceedings against a navy nurse who refused orders to do so.5

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The Canadian Healthcare Network posted this response in the on-line edition, which is accessible only to health care professionals and managers.

Notes

1.  Bronca, T. “A conflict of conscience: What place do physicians’ religious beliefs have in modern medicine.” Canadian Health Care Network, 26 May, 2015 (Accessed 2018-03-07).

2. Downar J. “Is physician-assisted death in anyone’s best interest? – Yes.” Canadian Family Physician, Vol. 61: April, 2015, p. 314-316 (Accessed 2018-03-07).

3. St. Godard E. “Is physician-assisted death in anyone’s best interest? – No.” Canadian Family Physician, Vol. 61: April, 2015, p. 316-318 (Accessed 2018-03-07).

4. Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 (SCC), para. 137 (Accessed 2014-08-03). “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 2018-03-07).

5. Rosenberg C. “Top nursing group backs Navy nurse who wouldn’t force-feed at Guantánamo.” Miami Herald, 19 November, 2014 (Accessed 2018-03-07)

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]

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

Click here to access Journal.
Click here to access Journal.

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.

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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

“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.