TORONTO, ON February 27 2015 – The Catholic Civil Rights League (CCRL) makes this submission to the College of Physicians and Surgeons of Saskatchewan (CPSS) regarding the unacceptable proposed policy Conscientious Refusal.
We strongly advocate for a robust understanding and protection of the Charter right of freedom of conscience and religion for all Canadians, and for physicians in the daily routine of their care to patients and in the overall forming of their individual medical practices. This constitutional right cannot be displaced by a patient request or demand for morally objectionable procedures. There is no Charter right in Canada to access any health care procedure from a specific physician [Flora v. Ontario Health Insurance Plan, 278 D.L.R. (4th) 45, 83 O.R. (3d) 721(Ont. Div. Ct. 2007)]
The CCRL therefore rejects the proposed mandate for a “timely referral” or related propositions contained in sections 5.1 through 5.3 of the proposed policy. There is no authority for such propositions. The College’s position is more aggressive than any previously disclosed suggestions from other provincial colleges and it invites an application for judicial review if passed in its current form.
The CCRL further rejects the compulsion to “provide the patient with all health services” in those occurrences when “a referral to another health care provider is not possible.” Both propositions are breaches of a physician’s rights and a serious incursion into the professional standing of a physician.
Freedom of Conscience
Conscience is an innate, universal human faculty recognized as the core of a person’s freedom and individuality. It is more than simply a faculty for decision-making; it is the inner arbiter for deciding one’s actions as an individual and it cannot be simply dismissed as a mere “personal belief.” To force a person to act against their conscience is to destroy their core and fundamental integrity. Freedom of conscience is therefore fundamental to the freedom of an individual, and must be protected as an innate human right. Such a right cannot be limited in a one-sided manner in favour of patients.
Doctors and other health care professionals, indeed all Canadians, enjoy the Charter right of freedom of conscience and religion. A proper balancing of the rights of physicians with the concept of patient autonomy must not result in the trumping of the rights of physicians in their medical practices. Such rights extend not only to refusing to perform morally objectionable services, but the right not to be obliged to refer to other practitioners who may be willing to provide such services. This clearly would engage a forced participation in moral wrong, at the risk of disciplinary consequences. The proposed mandate for a “timely referral” must berejected. We urge the College to reconsider these proposals, and recognize the conscience rights of physicians as part of their professional obligations.
An erosion of the physician’s integrity at his or her core moral level would have devastating consequences for the patient and for society at large. Checking one’s conscience at the door of the clinic would not facilitate quality patient care.
Perhaps the proper analysis should be framed in the following way in response to a patient request for a morally objectionable treatment. A doctor could reasonably ask, “As your physician, would you prefer that I act with moral integrity?” with the expectation that a patient would say yes, as a negative answer could lead to tragic consequences. That doctor could then reasonably assert that a demand to perform an objectionable service, while of interest to the patient, would irrevocably violate and damage that doctor’s integrity for evermore.
It would be entirely conceivable that conscientious doctors would leave the province rather than be forced to face discipline for exercising their conscientious beliefs.
Objectionable Provisions of the Draft Policy
Following the assertion that, “physicians can decline to provide legally permissible and publicly-funded health services if providing those services violates their freedom of conscience,” the subsequent line in the CPSS draft policy is wholly unacceptable to the CCRL:
However, in such situations, they must make a timely referral to another health care provider who is willing and able to accept the patient and provide the service.
The CCRL appeals to the CPSS to strike from this policy the necessity to “make a timely referral.” This is an unacceptable inclusion, an unnecessary and unwanted insertion. Compelling a physician to provide a timely referral to another physician or health-care provider in order to carry out a procedure to which he or she objects on the grounds of conscience or religion also compels the physician to violate his or her own conscience by being a participant in the very act, the very procedure to which he or she objects in the first place.
The current draft policy also proposes that:
When a referral to another health care provider is not possible without causing a delay that would jeopardize the patient’s health or well-being, physicians must provide the patient with all health services that are legally permissible and publicly-funded and that are consented to by the patient or, in the case of an incompetent patient, by the patient’s substitute decision-maker. This obligation holds even in circumstances where the provision of health services conflicts with physicians’ deeply held and considered moral or religious beliefs.
This is shockingly unacceptable and the language used by the CPSS is woefully problematic. Whereas nobody would deny that a physician ought to come to the immediate aid of a person in acute distress with the imminent threat of death, the reference to “a delay that would jeopardize the patient’s health or well-being” as grounds to compel a physician to violate his or her Charter right of freedom of conscience and religion is preposterously subjective and trivial. It, in effect, provides 100 percent autonomy to the patient and reduces the physician to an on demand order taker, stripping him or her of any vestiges of professionalism utterly dismissing the history of medicine since the Hippocratic Oath, developed in the fourth century BC.
Prevailing Wisdom of the Medical Profession
The Hippocratic Oath developed in response to a prevailing medical culture in ancient Greece where physicians took bribes, administered poisons, and had powers that were feared by the public. Hippocrates and his followers proposed a paradigm where physicians could be trusted: the oath was sworn under Apollo, acknowledging that a physician’s behaviour was answerable to a higher-than-human authority. It also forbade the giving of drugs to end life, even in the womb. The physician was called to be one who would heal and comfort and not harm – laying a foundation for Western medicine for centuries to come.
A basic and fundamental tenet of medical professionalism is primum non nocere – first, do no harm. This is spelled out because there is no other profession with a unique access to treatments and procedures that can cause harm, even death. Therefore, when a physician is asked to prescribe a medication or perform a procedure that he or she knows may cause harm, he or she cannot do so without violating this basic ethical principle. The refusal, in this case, is not discrimination against the person requesting the procedure, but rather in response to a rational evaluation that this would cause harm. The refusal is out of response for the patient and to honour the trust that the patient has made in the physician’s professional judgment.
With the advent of physician assisted suicide, the Supreme Court has placed the onus on all Canadian regulatory bodies to collaborate and develop policies and guidelines for end-of-life practices. The Supreme Court recognized that physicians would not be obliged to participate in such processes of assisted suicide.
The CCRL submits that issues pertaining to the sanctity of life from conception until natural death is a core Catholic belief. There is also a growing body of medical research which has questioned in recent years the merits of artificial birth control, and the further risks to women from abortion. A Catholic physician is entitled in conscience to avoid providing artificial contraception or abortifacients, or procuring an abortion unless the mother’s life is in imminent threat. Now that Canada is on the path leading to a regime of physician assisted suicide, the threat to conscientious objection is that much greater. We assure the CPSS that under no circumstances would any of the aforementioned practices be considered acceptable to Catholic physicians whether or not they may be “legally permissible and publicly funded”.
The CCRL further submits that there are numerous procedures which may violate good medicine, or violate the consciences of many other physicians belonging to other religions or those holding sincere beliefs, religious or otherwise. The point is that despite our mandate to educate the public and defend and promote the Catholic perspective, we at the CCRL submit that a physician must have the right to carry out their duties in line with their consciences, period.
Neither the College nor the courts determine what comprises conscientious or religious belief and to what extent acts may or may not interfere. Once the sincerity of religious belief is understood, neither the College or courts should interfere in a delineation of what the particular faith may prescribe. It is far more logical to simply respect physicians’ consciences as has been the case. The compulsion to make a timely referral violates this right of freedom of conscience and religion and there is no reason to institute the need to provide a timely referral, whether it is on the grounds of access to care, or on any other grounds. This holds equally true for the compulsion to “provide the patient with all health services” when a timely referral “is not possible without causing a delay that would jeopardize the patient’s health or well-being.”
Balancing of Claims
Regarding the balancing of rights between physicians in Saskatchewan and those seeking health services, the CCRL believes that an imposed mandate to make a timely referral or a mandated compulsion for a physician to act against his or her conscience cannot be sustained. A physician’s Charter rights of conscience and religion may not be absolute, but it cannot be trumped by the concept of patient autonomy without dealing with other options, such as a patient’s own investigation of doctors willing to perform the requested service.
Should a patient request genital mutilation, while acceptable in some cultures, there would be ample reason to support the doctor’s refusal to perform the service, or in participating in a referral. Other practices that would be morally objectionable to a serious Catholic physician would include abortion, assisted suicide, or artificial contraception. It should be noted that the number of physicians who may object is minute in comparison to those who may have no objection whatsoever. We are unaware of any human rights complaint asserting that a “legally available” service could not be secured from the large proportion of physicians who are willing to provide such services. No member of the public in Saskatchewan can reasonably assert that their rights to autonomy have been violated by any physician following his or her conscience to refuse to perform certain services, by having to look elsewhere for a willing doctor.
Conclusion – Authentic Pluralism
With this submission, we at the CCRL call upon the CPSS to reject the mandate for “timely referrals” along with the compulsion to act “when a referral to another health care provider is not possible without causing a delay.” The medical profession, as with any grouping of individuals is not truly free to live and free to grow if its members are not able to govern their actions in accordance with their individual consciences, whether informed by moral and religious beliefs or otherwise.
Canada is a pluralist society, and an authentic pluralism recognizes that there will be differences in the public sphere, and that we live with such differences in a civil society. The CPSS policy engages in a trumping exercise, mandating that a patient’s autonomy trumps recognized conscientious and religious rights of physicians. The demand for acceptance of a regime of a “timely referral” of morally objectionable practices alongside the compulsion to act would lead to patients losing trust in the professional status of doctors. There is also the likelihood of numerous physicians opposing the new proposed policy and their refusal to comply, generating unwarranted complaints and possible exits from the jurisdiction. The extent of potential disruption is unknown, but greater instability would certainly follow in the provision of medical services. Saskatchewan can ill afford such a tearing of the social fabric of our society.
The better alternative is to accept what we treat as respect for differences, especially when they concern aspects of one’s moral or religious beliefs, in no way trivial, but rather as the basis of a well-developed civil society.
About the CCRL
Catholic Civil Rights League (CCRL) (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The CCRL was founded in 1985 as an independent lay organization with a large nationwide membership base. The CCRL is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information:
Christian Domenic Elia, PhD
CCRL Executive Director