In August 2008, Action Life was made aware of a draft policy released by the Ontario College of Physicians and Surgeons, Physicians and the Ontario Human Rights Code. We expressed our concern over a certain item in the draft policy document proposed by the College of Physicians and Surgeons of Ontario (CPSO). Of particular concern was the following section:
“Personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients. However, as a physician’s responsibility is to place the needs of the patient first, there will be times when it may be necessary for physicians to set aside their personal beliefs in order to ensure that patients or potential patients are provided with the medical treatment and services they require.
Physicians should be aware that decisions to restrict medical services offered,...that are based on moral or religious belief may contravene the Code, and/or constitute professional misconduct .”
As indicated in our response to the CPSO , these provisions might have resulted in a physician refusing to refer for abortion or other procedures for reasons of conscience, in violation of the Code. If euthanasia and assisted suicide were legalized, a physician refusing to facilitate these practices on conscientious grounds could yet again have found himself/herself in violation of the Code. Two private members bills have been presented in Parliament since 2005 seeking to legalize assisted suicide. If such a bill were to pass, the physician would be presented with further ethical conflicts.
The Ontario Medical Association (OMA) said in its response to the draft policy of the CPSO that “The OMA is concerned that this draft policy may interfere with physicians existing rights and freedoms. The OMA urges the CPSO to abandon this policy. First, the section of the policy entitled “Moral or Religious Beliefs” does not adequatley inform physicians that their right to freedom of religion is protected under the Charter of Rights and Freedoms. The OMA stated, “We believe that it should never be professional misconduct for an Ontario physician to act in accordance with his or her religious or moral beliefs.”
Feedback provided to the CPSO by the College of Physicians and Surgeons of Manitoba however i ndicated that it may implement a similar policy to the one that was proposed by the CPSO.
Physicians should not be expected to refer for services to which the physician is opposed on religious or conscientious grounds. Provisions in the policy should protect physicians in Ontario from coercion. The Constitution of Canada recognizes freedom of religion and conscience and these rights are protected by the Charter of Rights and Freedoms. The proposed guidelines in the section “Moral or religious beliefs” would also have been at odds with the policy of the Canadian Medical Association (CMA) which allows physicians to opt out of referrals for abortion. The present policy of the Canadian Medical Association is clear; physicians are under no obligation to provide or refer for abortion. In fact, the CMA’s policy on induced abortion states: “A physician whose moral or religious beliefs prevent him or her from recommending or performing an abortion should inform the patient of this so that she may consult another physician.
No discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology and anesthesia.”
Attacks are mounting on the conscience rights of physicians. Last year, a letter requesting a change to the CMA referral policy on abortion was sent by The National Abortion Federation, an organization based in the United States representing abortion providers in the U.S. and Canada. The National Abortion Federation was seeking a policy which would force physicians to refer for abortion. It received the following response from Dr. Colin McMillan, then President of the CMA who wrote “The CMA’s policy on induced abortion does not violate our Code of Ethics...Nor does it treat women unfairly or impede their access to critical health care.”
In addition to the proposed draft policy of the College of Physicians and Surgeons of Ontario and the National Abortion Federation’s letter, a controversy arose in 2006 when a guest editorial by Professors Sanda Rogers and Jocelyn Downie, published in the Canadian Medical Association Journal of July 4, said in relation to induced abortion that “Health care professionals who ...fail to provide appropriate referrals...are committing malpractice and risk lawsuits and disciplinary proceedings.” In response, the Journal published a letter from the CMA’s Director of Ethics clarifying that the CMA policy on abortion, did not require physicians to refer for abortions if doing so would be a violation of their conscience.
There is still cause for concern as CMA Ethics Director Dr. Jeff Blackmer was quoted in the National Post as saying that “a groundswell from the membership one way or another” could cause the CMA to re-examine its present policy on abortion.
A similar situation is being played out in the United States where the American College of Obstetricians and Gynecologists (ACOG) issued a policy statement “The Limits of Conscientious Refusal in Reproductive Medicine”. As commented Jonathan Imbody, vice-president for government relations with the Christian Medical Association in the U.S., “The title well expressed the apparent goal of ACOG - to limit physicians’ right to conscientiously oppose abortion”. (1) ACOG said that it would review the controversial statement. Whether in Canada or the United States, an assault has been launched on the conscience rights of physicians.
The physician is not merely a technician providing services to patients. Under the CPSO draft policy, the conscience rights of physicians would have been adversely affected and their livelihood threathened if they were found guilty of professional misconduct for refusing to refer for abortion or other procedures which the physician found to be morally or ethically objectionable. Ontario physicians, who found the section on moral or religious beliefs, a violation of their conscience, might have chosen to practise elsewhere where freedom of religion and conscience is respected and upheld. Action Life called on the College of Physicians and Surgeons to strengthen measures to ensure the right of physicians to practise medicine in accordance with their conscience.
In the end, the CPSO revised the policy and removed the most contentious passages pertaining to moral or religious beliefs. The original draft policy was much criticized by physicians. Sean Murphy, Administrator of the Protection of Conscience Project, warns that the revised policy is still problematic. Specifically, vague wording saying that “in some circumstances”, physicians have to “help the patient or individual make arrangements” to see another physician.
(1) National Right to Life News, May 2008