Denying doctors free conscience unconscionable

Margaret Somerville
"Denying doctors free conscience unconscionable"
© The Calgary Herald
September 18, 2008
Reproduced with Permission

One of the strategies of those trying to suppress religion and religious beliefs, is to try to force healthcare professionals to act against their moral, ethical or religious beliefs, that is to deny them freedom of conscience.

Now, it seems, this matter is also under consideration in Alberta. The College of Physicians and Surgeons of Alberta began a consultation process Sept. 2, which ends Nov. 3, and, it's reported, physicians' freedom of conscience will be considered. What happens in Ontario is of more than usual importance to all of us.

The Ontario policy states "physicians should be aware that decisions to restrict medical services offered, to accept individuals as patients or to end physician-patient relationships that are based on moral or religious belief may contravene the code, and/or constitute professional misconduct."

The Ontario Human Rights Commission elaborated on the policy by pointing out that a refusal to provide a service requested by the patient can only be justified if the physician does not have the "clinical competence" to perform it and that a duty to refer exists in such cases. The commission also warns that "physicians should not express personal judgments about the beliefs, lifestyle, identity or characteristics of the patient or potential patient."

The College also puts physicians on notice that if their conduct constitutes discrimination under the human rights code, there is no defence based on moral or religious belief: A "physician's refusal . . . on the basis of a prohibited ground is prima facie discrimination, even if the refusal is based on the physician's moral or religious belief. This means that the physician could be subject to a human rights complaint."

If the physician's refusal is also professional misconduct, it would result in disciplinary proceedings and penalties ranging from reprimands to fines and loss of a licence. The Ontario Medical Association has spoken out against the policy, which is scheduled to be voted on by the college today. The college says they have modified the policy to take account of the association's concerns, but are reported to be refusing to release the modified document before it is voted on.

What led to this approach and what might be the consequences of adopting it?

First, it reflects a recently emerging view that physicians are mere technicians able to provide services that patients want and have a right to access. Physicians have a duty to provide these services and no right to bring their moral or ethical reservations into play. To do so is discrimination.

Think of having your car repaired: For a mechanic to refuse to service your car just because you were a woman would be discrimination and a human rights offence. Some say physicians' refusal of medical services for moral or ethical reasons is the same thing.

Unlike the mechanic, however, a physician who refuses to be involved in abortion is not providing the service to one patient but not another, or basing his refusal on any characteristic of the patient. He is refusing the service to all patients because he believes it is morally and ethically wrong.

Unlike medicine, usually car repairs don't raise moral and ethical issues. But what if you were a bank robber preparing a getaway car and told the mechanic that? Suddenly, automotive repair would become an ethical and moral issue. Would a refusal still be wrong or might it even be required? And referring the bank robber to another mechanic would make you complicit in the wrongdoing.

The practice of medicine always and unavoidably involves ethical and moral issues. It's only when something goes wrong or there is a conflict of values that the ethical issues flash up on the big screen. Treating physicians as mere technicians fails completely to take that omnipresent ethical aspect into account.

It is also the antithesis of the traditional concept of a physician, as a professional with ethical and legal obligations to exercise good judgment. Most notable among those obligations is to first do no harm, which means that a physician may not simply fulfil a patient's request, but must make an independent judgment as to its acceptability.

Treating physicians as technicians can result in an argument that bizarre requests be fulfilled: For instance, some people argue that if a person wants a healthy right leg amputated, he or she has a right to do so. On a more everyday level, patients' lifestyle choices -- the commission warns failure to honour them could be discrimination -- can be a problem. Some women who rejected physicians' advice to change their diet if they wanted to lose weight and instead demanded Phenphen, a weight-loss drug, died as a result.

Treating physicians as technicians denies that respect is required for physicians' freedom of conscience. Such an understanding of the physician-patient relationship would do a great disservice to patients because maintaining respect in any encounter requires that respect be mutual.

In stark contrast to fostering such respect, here's the commission's startling view of a physician's obligation: "It is the commission's position that doctors, as providers of services that are not religious in nature, must essentially 'check their personal views at the door' in providing medical care." The commission makes clear that physicians' "personal views" include their ethical and moral beliefs and values. That raises serious problems for physicians, but also for patients: Would we want to be treated by a physician who complied with a directive to "park your ethics and values with your car outside the surgery?"

The problem lies in classifying as discrimination a refusal to provide or refer for a service, such as abortion, euthanasia or artificial reproduction, that the physician -- and many other Canadians -- believe is wrong.

In Canada, pro-choice advocates are not content with having the freedom to act according to their values; they want to make others act likewise. And they want their beliefs publicly affirmed. These people claim freedom of values for themselves, but refuse to respect others' freedom. That's why they will not tolerate a respect-for-freedom-of-conscience exception. No matter what our values or views, we should all be concerned by such totalitarianism.

Prof. Margaret Somerville holds professorships in the Faculty of Law and the Faculty of Medicine at McGill University and was the founding director of the McGill Centre for Medicine, Ethics and Law.

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CanWest Interactive, a division of CanWest MediaWorks Publications, Inc.. All rights reserved.