Submission to the College of Physicians and Surgeons of Ontario Re: Human Rights in the Provision of Health Services (2022)

Protection of Conscience Project


Protection of Conscience Project
Protection of Conscience Project

The College of Physicians and Surgeons of Ontario (CPSO) has invited comment on a draft policy and related document, Human Rights in the Provision of Health Services (Human Rights 2022) and Advice to the Profession: Human rights in the Provision of Health Services (Human Rights-Advice 2022). The draft revision updates the current policy through which the CPSO imposed a requirement for “effective referral” for morally contested services. Ontario physicians unwilling to provide a procedure they consider unethical/immoral/harmful are required by the CPSO to make an “effective referral” — to connect a patient with a practitioner willing to do what they refuse to do. The policy survived a constitutional legal challenge. It appears that judicial approbation has become a license to make increasingly oppressive demands on objecting physicians.

In particular, Human Rights 2022 now requires physicians who make effective referrals to follow up and ensure that patients have connected with the practitioner or agency to whom they were referred. If not, physicians are required to take additional steps to bring the connection about. Further, the policy now emphasizes an obligation to provide formal clinical referrals for morally contested services, but anticipates that “many patients” will need physician help to get services even when they can be directly accessed.

 Human Rights 2022 forbids physicians to “express” moral judgement about patient beliefs. That is impossible. Both agreement and refusal to provide or collaborate in a service express moral judgement about a service being sought, and implicitly express a similar judgement about a patient’s beliefs.

Ontario physicians are now forbidden to “express” moral judgement about services sought by patients. This contradicts the Canadian Medical Association (CMA) Code of Ethics and Professionalism. It also obstructs physician-patient matching, which is an effective strategy for accommodating patients and physicians and improving health outcomes. Finally, the prohibition amounts to a de facto suppression of physician freedom of conscience, which necessarily entails an expression of moral or ethical judgement about services sought by patients.

A new provision requires physicians to consider patient access to services when making decisions about their scope of practice and clinical competence. This may be intended to pressure physicians to extend their scope of practice/clinical competence to include services to which they object for reasons of conscience. Previously, the CPSO had assured the courts that physicians opposed to making effective referrals could avoid conflicts by changing their scope of practice: from general practice to hair restoration, for example.

Another new passage states that physicians must not “provide false, misleading, confusing, coercive, or incomplete information” about treatment options. The obligation to adhere to principles of informed consent is affirmed by Human Rights 2022 and precludes such conduct, so the pejorative warning is unnecessary. Its location within the document indicates that it is addressed to physicians whose religious or moral beliefs cause them to object to certain procedures. The message conveyed is that these physicians are likely to lie, deceive, mislead and coerce their patients, so an explicit warning is needed. Demeaning innuendos of this kind are condemned by the CPSO in other contexts and considered a form of workplace harassment by the Ontario government.

Three disparate elements of the revised policy are noteworthy.

First: Human Rights 2022 states that physicians must not comply with apparently discriminatory patient requests to be treated by a physician with a specific “social identity,” and it authorizes them to refuse required medical care if the request has made them feel unsafe. In effect, the new provision instructs physicians that they must not comply with patient requests that would facilitate perceived wrongdoing by someone else (i.e., discrimination by the patient). This is exactly the same reasoning applied by physicians who refuse to facilitate euthanasia and assisted suicide by effective referral. Through Human Rights 2022 the CPSO confirms the validity of their reasoning

Second: the policy directs physicians to incorporate policies that appear to be constitutive elements of a particular socio-political doctrine into their practices. Doctrinally defined policies bring doctrinal baggage that may be rejected by physicians who hold a variety of comprehensive religious and non-religious world views. The CPSO has not demonstrated that the socio-political doctrine it intends to impose through Human Rights 2022 is the only one acceptable in Ontario medical practice.

Finally, all physicians working in faith-based hospitals and hospices are required to provide “access to information and care, including effective referrals for services, treatments and procedures that are not provided” in the institution. The direction is clearly intended to subvert the exercise of freedom of religion by religious groups operating healthcare facilities.

 Objecting practitioners are typically willing to work cooperatively with patients and others to accommodate patient access to services as long as cooperation does not involve collaboration: an act that establishes a causal connection to or de facto support for the services to which they object. They are usually willing to provide patients with information to enable informed decision-making and contact with other health care practitioners. The distinctions between cooperation and collaboration and providing information vs. providing a service enable an approach that accommodates both patients and practitioners.

The Project recommends that the College adopt a single protection of conscience policy applicable to all services and procedures. This submission includes an example of such a policy. However, should current policy structure be maintained, specific recommendations are made for revisions to Human Rights 2022 to address problematic elements identified in the submission.

I.   Defining Terms
II.    Providing Health Services (1): The Practice Environment
III.    Providing Health Services (2): Physician Expression
IV.    Providing Health Services (3): The Duty to Accommodate
V.    Providing Health Services (4): The Duty to Provide Services Free from Discrimination
VI.    Limiting Services: Clinical Competence/Scope of Practice
VII.    Conflict with Physician Conscience/Religion (1): Providing Information

VIII.    Conflict with Physician Conscience/Religion (2): Effective Referral
Appendix “A”: Human Rights 2022 and Project Recommendations
Appendix “B”: Recommended General Policy

Submission to the College of Physicians and Surgeons of Ontario Re: Medical Assistance in Dying (2022)

Protection of Conscience Project


Protection of Conscience Project
Protection of Conscience Project

The College of Physicians and Surgeons of Ontario (CPSO) has invited comment on a draft revision of its euthanasia/assisted suicide policy, Medical Assistance in Dying (CPSO MAID 2022). The focus of this submission is on issues related to the exercise of freedom of conscience by practitioners who refuse to do what they believe to be unethical or immoral in relation to euthanasia and assisted suicide (EAS, “medical assistance in dying”, MAID).

The CPSO has indicated that it does not consider EAS requests to be emergencies. However a source cited in CPSO MAID 2022 indicates otherwise, and CPSO MAID 2022 is silent on the issue. CPSO MAID 2022 should explicitly confirm CPSO statements that MAID is not a treatment option in an emergency, requests for MAID are not emergencies, and physicians are never required to assess patients for or provide the service.

Failed self-administration of lethal EAS medication can bring patients to hospital emergency rooms. Requiring EAS practitioners to be present and remain with patients self-administering EAS drugs until death ensues would prevent this and other problems, like delayed discovery of corpses in circumstances that would trigger police and coroner investigations.

CPSO MAID 2022 requires EAS practitioners to falsify death certificates. This is contrary to accepted international standards and can be considered deceptive, unethical or professionally ill-advised. EAS practitioners unwilling to falsify death certificates should not be compelled to do so.

Practitioners who believe that a patient is ineligible for MAID must refuse to provide euthanasia or assisted suicide or do anything to facilitate the services. Prominent medical practitioners insist that it is impossible to establish that mental illness is irremediable. The CPSO has no basis to proceed against them if they refuse to do anything to further an EAS request based on mental illness alone.

Patients can sign a waiver authorizing euthanasia if they lose capacity to consent before the time appointed for the procedure. They may later express ambivalence, or having apparently lost capacity, express ambivalence about proceeding with euthanasia at the appointed time. However, the benchmark set by the Criminal Code is refusal. EAS practitioners may legally proceed if the patient expresses only ambivalence. CPSO MAID 2022 should provide ethical direction or guidance in relation to the response expected from EAS practitioners in such circumstances.

I.    Avoiding conflicts in urgent situations
 II.    Falsifying death certificates
III.    Criminal law limits on College policy
IV.    Criminal law and ethical norms
Appendix “A”: Summary of Recommendations

Canadian Medical Association and Referral for Morally Contested Procedures

Sean Murphy

Protection of Conscience Project
Protection of Conscience Project

The Canadian Medical Association (CMA) has variously expressed support for physician freedom of conscience in codes of ethics, resolutions at successive General Councils and in policies concerning specific procedures. For over fifty years it has insisted that physicians should not be compelled to make referrals for procedures to which they object for reasons of conscience.

It appears that the great majority of CMA members support this position, but are unaware of its history. This paper revisits this history at a time when increasingly strident claims have culminated in demands that the state should force objecting physicians to collaborate in euthanasia and assisted suicide by referral.

The first CMA “conscience clause” was introduced into the Code of Ethics in 1970 following the reform of Canada’s abortion law. The provision did not mention conscience (or abortion) but was clearly intended to protect physician freedom of conscience. It was reaffirmed and more clearly articulated the following year by the CMA Annual General Council.

A dramatic increase in the demand for abortion resulted in pressure on health care workers and institutions. A 1977 amendment of the Code was widely interpreted to require objecting physicians to refer for abortion. This caused significant division within the Association and was removed in 1978.

The protection of conscience provision in the Code of Ethics remained unchanged after the Supreme Court of Canada struck down Canada’s abortion law in 1988. The CMA stressed that there should be no discrimination against physicians who refused or who agreed to participate in abortion.

Twelve years later the CMA Director of Ethics said there was “no ethical consensus” to support mandatory referral, adding subsequently that physicians were not obliged to do what they believed was wrong. This position was supported by the Canadian Psychiatric Association.

The CMA rejected claims by two law professors in 2006 that objecting physicians were required to refer for abortion, two years later reiterating its support for physicians who refused to do so. These skirmishes reflected a continuing and increasing threat, but do not appear to have caused the CMA to explore or develop the foundation of its commitment to protect physician freedom of conscience.

As the issue of euthanasia and assisted suicide (EAS) made its way to the Supreme Court of Canada in 2014, CMA leaders moved the Association from opposition to the procedures to purported “neutrality” and support for physician freedom of conscience. However, in expressing unconditional support for legal EAS, the changed policy potentially exposed many physicians to demands that could generate serious conflicts of conscience.

When the Supreme Court ruled in Carter the CMA leadership was ready to implement euthanasia and assisted suicide, but not to mount a cogent, articulate and persuasive defence of physician freedom of conscience. CMA leaders waffled on the issue of mandatory referral to EAS providers when it exploded in the months following the ruling. However, a substantial majority of CMA members opposed mandatory referral, and the CMA General Council approved a policy framework for implementing the Carter decision did not require it.

The first CMA statement addressing the subject of physician freedom of conscience at a foundational level was a 2016 submission opposing a state regulator’s plan to compel objecting physicians to make an “effective referral” to EAS providers. Important elements in the submission were incorporated into CMA policy Medical Assistance in Dying the following year.

In brief, the CMA expects physicians to notify patients of their objections to EAS and respond to patient requests for EAS by acknowledging them respectfully and providing information they need to exercise moral agency and give effect to their decisions. This includes information about how to access an appropriate health care network. Physicians are not obliged to provide or participate in EAS or to facilitate it by referral to a person or entity willing to provide the service. However, they must cooperate in a transfer of care initiated by the patient or others and transfer medical records upon request. While this policy is specific to euthanasia and assisted suicide, it can be applied to other procedures. There is no principled reason to suggest otherwise.

Relevant sections of the CMA’s new Code of Ethics and Professionalism adopted in 2018 are consistent with these requirements and reflect the position on referral that the CMA has now held for fifty years. The Code’s emphasis on professionalism does not imply that “professional expectations” override physician freedom of conscience, an implication inconsistent with the emphasis placed on moral agency, integrity and conscience in the Code and CMA policy statements. Further, claims about “professional expectations” are not neutral. Subordinating freedom of conscience to a dominant or purportedly “neutral” theory of professionalism will generate illicit discrimination and exacerbate rather than resolve conflict within the profession.

Informed by careful reflection about the role and importance of freedom of conscience in health care, a serviceable stand-alone policy on physician freedom of conscience could be drafted by drawing on past CMA statements, its submission to the CPSO on effective referral, and the revised CMA Medical Assistance in Dying policy. However, in doing so it is essential to avoid entanglement in controversies about the acceptability of morally contested procedures. Instead, a broad and principled approach is necessary, one that recognizes that freedom of conscience serves the fundamental good and dignity of the physician as a human person, not merely professional autonomy or independence.

1970: The first CMA “conscience clause”
1977-78: The first referral controversy
1988: Responding to R v Morgentaler
2000-2003: No ethical obligation to do what is believed wrong
2006-2008: Policy reaffirmed
2011: Referral for euthanasia, assisted suicide
2012-2014: Euthanasia, assisted suicide, ‘neutrality’ and conscience
2015: The Carter maelstrom
2016: The CMA and “effective referral”
2017: The CMA and euthanasia/assisted suicide
2018: CMA Code of Ethics and Professionalism
Looking ahead

Referral vs Transfer of Care:Ethical Options When Values Differ

Cynthia Jones-Nosacek

The Linacre Quarterly
The Linacre Quarterly

Conscientious objection (CO) in medicine is where a healthcare professional (HCP) firmly opposes, with an expression of reasoned disapproval, a legally available procedure or treatment that is proscribed by one’s conscience. While there remains controversy regarding whether conscientious objection should be a part of medicine, even among those who support CO state that if the HCP does not provide the requested service such as abortion, physician assisted suicide, etc., there is an obligation on the part of the objecting HCP to refer to someone who will provide it. However, referral makes the referring HCP complicit in the act the referrer believes to be immoral since the referrer has a duty to know that the HCP who will accept the patient is not only able to do the procedure but is competent in its performance as well. The referrer thus facilitates the process. Since one has a moral obligation to limit complicity with immoral actions when it cannot be avoided, the alternative is to allow the patient to transfer care to another when the patient has made the autonomous decision to reject the advice of the HCP.

Jones-Nosacek C. Referral vs Transfer of Care:Ethical Options When Values Differ. The Linacre Quarterly 2022 89(1):36-46.

Conscience, moral reasoning, and skepticism

Larry R Churchill

Perspectives in Biology and Medicine
Perspectives in Biology and Medicine

There is much to admire in Lauris Kaldjian’s explication of conscience and its uses for medical practitioners. Yet his claim that conscience is the final and best assessment of moral judgments is flawed, because it diminishes the influence of moral reasoning that balances and often corrects conscience. Skepticism about conscientious judgments is an important feature of ethics. Kaldjian’s close linkage of conscience with moral integrity blunts the necessary recognition that one’s conscience can be mistaken. His defense of physician refusals to refer patients gives insufficient weight to the idea that patients’ actions in seeking services may also reflect conscientious judgments. Analyses of cases near the end of this essay present no problems with respecting physicians’ conscientious refusals to provide services themselves, but they also mostly leave moral room for physicians to make referrals. Examination of these cases suggests other ways to resolve moral conflicts than recourse to one’s conscience.

Churchill LR. Conscience, moral reasoning, and skepticism. Perspect Biol Med. 2019 Summer;62(3):519-526.

Medical Referral for Abortion and Freedom of Conscience in Australian Law

Joanne Howe, Suzanne Le Mire

Journal of Law and Religion
Journal of Law and Religion

This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

Howe J, Le Mire S.  Medical Referral for Abortion and Freedom of Conscience in Australian Law. J Law and Religion. 2019 Apr;34(1):85-112 DOI: Published online by Cambridge University Press: 01 July 2019

Understanding conscience as integrity: Why some physicians will not refer patients for ethically controversial practices

Lauris Christopher Kaldjian

Perspectives in Biology and Medicine
Perspectives in Biology and Medicine

The moral pluralism of Western democratic societies results in ethical differences among citizens and health professionals, due to contrasts between the foundational beliefs and values on which their ethical convictions rest. Some of these differences have challenging implications for the practice of medicine when a patient seeks access to a legal medical service that a conscientiously acting physician believes is unethical. Such disagreements raise pivotal questions about competing ethical values, the moral dynamic of shared decision-making, the meaning of conscience, and the extent to which society will accept ethical differences in professional practice. The act of referral is the focal point of this essay, because it appears to be at the front line of some current debates and legal contests about the extent to which society is willing to accommodate conscientious practice by physicians. Some see referrals as a way to balance respect for physician integrity with promotion of patient autonomy; others see referrals as a mistaken attempt at compromise that misunderstands the meaning of moral responsibility and participation. Understanding conscience as integrity helps explain the moral seriousness of conscientious practice and reinforces the need for professional and legal accommodations that respect it.

Kaldjian LC. Understanding conscience as integrity: Why some physicians will not refer patients for ethically controversial practices. Perspect Biol Med. 2019 Summer;62(3):383-400.

Conscientious objection to abortion, the law and its implementation in Victoria, Australia: Perspectives of abortion service providers

Louise Anne Keogh, Lynn Gillam, Marie Bismark, Kathleen McNamee, Amy Webster, Christine Bayly, Danielle Newton

BMC Medical Ethics
BMC Medical Ethics

In Victoria, Australia, the law regulating abortion was reformed in 2008, and a clause (‘Section 8’) was introduced requiring doctors with a conscientious objection to abortion to refer women to another provider. This study reports the views of abortion experts on the operation of Section 8 of the Abortion Law Reform Act in Victoria.

Methods: Nineteen semi-structured qualitative interviews were conducted with purposively selected Victorian abortion experts in 2015. Interviews explored the impact of abortion law reform on service provision, including the understanding and implementation of Section 8. Interviews were transcribed verbatim and analysed thematically.

Results: The majority of participants described Section 8 as a mechanism to protect women’s right to abortion, rather than a mechanism to protect doctors’ rights. All agreed that most doctors would not let moral or religious beliefs impact on their patients, and yet all could detail negative experiences related to Section 8. The negative experiences arose because doctors had: directly contravened the law by not referring; attempted to make women feel guilty; attempted to delay women’s access; or claimed an objection for reasons other than conscience. Use or misuse of conscientious objection by Government telephone staff, pharmacists, institutions, and political groups was also reported.

Conclusion: Some doctors are not complying with Section 8, with adverse effects on access to care for some women. Further research is needed to inform strategies for improving compliance with the law in order to facilitate timely access to abortion services.

Keogh LA, Gillam L, Bismark M, McNamee K, Webster A, Bayly C et al.. Conscientious objection to abortion, the law and its implementation in Victoria, Australia: Perspectives of abortion service providers. BMC Medical Ethics. 2019 Jan 31;20(1).

(Correspondence) An effective referral is still a referral

Sanasi Jayawardena, Alexandra A Majerski

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

We are writing to respond to Dr. Steven Bodley’s letter: “Just the Facts on Effective Referral.” . . . The College of Physicians and Surgeons of Ontario’s (CPSO’s) effective referral policy for MAiD does not go far enough in protecting the religious freedom of physicians. . . It is unfortunate that the CPSO does not acknowledge that the provision of an “indirect” referral still renders the referring physician complicit. . . . medical students training in Ontario must now seriously consider taking their skills and talents to another province or jurisdiction in which they can practice their vocation in a manner that upholds their integrity. . .

Jayawardena S, Majerski AA. An effective referral is still a referral. CMAJ [Internet]. 2018 Feb 28; 190(7).

Conscientious objection in healthcare and the duty to refer

Christopher Cowley

Journal of Medical Ethics
Journal of Medical Ethics

Although some healthcare professionals have the legal right to conscientiously object to authorise or perform certain lawful medical services, they have an associated duty to provide the patient with enough information to seek out another professional willing to authorise or provide the service (the ‘duty to refer’). Does the duty to refer morally undermine the professional’s conscientious objection (CO)? I narrow my discussion to the National Health Service in Britain, and the case of a general practitioner (GP) being asked by a pregnant woman to authorise an abortion. I will be careful not to enter the debate about whether abortion should be legalised, or the debate about whether CO should be permitted—I will take both as given. I defend the objecting GP’s duty to refer against those I call the ‘conscience absolutists’, who would claim that if a state is serious enough in permitting the GP’s objection in the first place (as is the UK), then it has to recognise the right to withhold any information about abortion.

Cowley C. Conscientious objection in healthcare and the duty to refer.  J Med Ethics 2017;43:207-212.