Category: Ethics

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

Protection of Conscience Project

Abstract

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.

TABLE OF CONTENTS
Introduction
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

Abstract

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.

TABLE OF CONTENTS
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

The religious character of secular arguments supporting euthanasia and what it implies for conscientious practice in medicine

John Tambakis, Lauris Kaldijian, Ewan Goligher

Theoretical Medicine and Bioethics
Theoretical Medicine and Bioethics

Abstract
Contemporary bioethics generally stipulates that public moral deliberation must avoid allowing religious beliefs to influence or justify health policy and law. Secular premises and arguments are assumed to maintain the neutral, common ground required for moral deliberation in the public square of a pluralistic society. However, a careful examination of non-theistic arguments used to justify euthanasia (regarding contested notions of human dignity, individual autonomy, and death as annihilation) reveals a dependence on metaethical and metaphysical beliefs that are not universally accepted in a pluralistic society. Such beliefs function in non-theistic arguments in the same way that foundational beliefs justify moral convictions in religious frameworks of belief. This parallel is apparent when religious belief is defined broadly (a la John Reeder) as ‘the search for the good in light of the limits and possibilities of the real.’ Seen through this interpretive lens, frameworks comprising Secular foundational commitments function, in ethically relevant respects, like the guiding beliefs found in the comprehensive frameworks of traditional religions. When conscientious practice in healthcare is reconsidered in light of this foundational similarity between the religious and the secular, it is clear that those who object to the foundational beliefs underpinning Secular arguments for euthanasia should not be required to provide, participate in, or refer patients for euthanasia (or other ethically controversial practices similarly dependent on contested frameworks of belief) in pluralistic societies that prize moral freedom as a primary human good.

Tambakis J, Kaldijian L, & Goligher EC. The religious character of secular arguments supporting euthanasia and what it implies for conscientious practice in medicine. Theor Med Bioeth (2022).

Dual Loyalty/Military Medicine

Cecil B. Wilson

World Medical Journal
World Medical Journal

Extract
Military medicine is described as the ethical issue of dual loyalty, and how it relates to those health care personnel who are both officers in the military and are medical officers such as doctors and nurses. . . Notably, I wear two hats − one to my country as an officer and one to my patients as their doctor. This clinical role may bring conflict between professional duties to a patient and obligations − expressed or implied, real or perceived, to the interest of a third party such as an employer, an insurer or the state − that can violate patient’s rights. Dual loyalty, in this case, is simultaneous for obligations expressed or implied to a patient and a third party such as the military.

Wilson CB. Dual Loyalty/Military Medicine. World Med J 2022 Nov;70(3): 4-7.

Canadian Medical Association and Referral for Morally Contested Procedures

Sean Murphy

Protection of Conscience Project
Protection of Conscience Project

Abstract
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.

TABLE OF CONTENTS
Introduction
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

Conscience Clauses, Health Care Providers, and Parents

Nancy Berlinger

Conscience Clauses, Health Care Providers, and Parents

Extract
Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs. . . . Conscience rights are also limited by the foundational duty of care, which must be maintained through referrals and transfers so that a refusal to provide a service does not result in abandonment of a patient. . . Physicians who work in the 11 U.S. jurisdictions that permit terminally ill people, under certain conditions, to request a prescription of lethal medication with the goal of ending their lives may also have mixed emotions and intuitions about participating in medical aid-in-dying. . . Conscientious objection to providing or participating in certain activities on principle should not be used to avoid patient care that a professional finds stressful, or as a remedy for the common problem of moral distress.

Berlinger N. Conscience Clauses, Health Care Providers, and Parents [Internet]. Garrison, NY: The Hastings Center; 2022 May 31.

Referral vs Transfer of Care:Ethical Options When Values Differ

Cynthia Jones-Nosacek

The Linacre Quarterly
The Linacre Quarterly

Abstract
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.

(Editorial) Assisted dying: a question of when, not if

Richard Hurley, Tessa Richards, Fiona Godlee

British Medical Journal, BMJ
British Medical Journal

Extract
Doctors’ views on assisted dying are split, and most doctors’ organisations take no position on the issue; a few—including the BMA—oppose legalisation. Their stance matters: lawmakers and judges regularly seek, and listen to, their views. The BMJ has called for the professions’ representatives to take a position of neutrality—neither in support nor opposition—on the grounds that doctors should not obstruct a decision that is for society and parliament to make.

Engaged neutrality is far from an abdication of responsibility. It honours the diversity in professionals’ opinion. We believe that it also enables organisations to facilitate and fully engage with much needed societal conversations about death and what it means to die well.

Neutral organisations can be closely involved in drafting laws and guidelines, which would be impossible if they opposed their existence. They can lobby for the interests of doctors who do not wish to participate, as well as of doctors who do. . .

Hurley R, Richards T, Godlee F. (Editorial) Assisted dying: a question of when, not if. Br. Med. J. 2021;374(2128)

Organ donation after euthanasia starting at home in a patient with multiple system atrophy

Najat Tajaâte, Nathalie van Dijk, Elien Pragt, David Shaw,A. Kempener‑Deguelle, Wim de Jongh, Jan Bollen,Walther van Mook

BMC Medical Ethics
BMC Medical Ethics

Abstract

Background: A patient who fulfils the due diligence requirements for euthanasia, and is medically suitable, is able to donate his organs after euthanasia in Belgium, the Netherlands and Canada. Since 2012, more than 70 patients have undergone this combined procedure in the Netherlands. Even though all patients who undergo euthanasia are suf‑ fering hopelessly and unbearably, some of these patients are nevertheless willing to help others in need of an organ.

Organ donation after euthanasia is a so‑called donation after circulatory death (DCD), Maastricht category III procedure, which takes place following cardiac arrest, comparable to donation after withdrawal of life sustaining therapy in critically ill patients. To minimize the period of organ ischemia, the patient is transported to the operating room immediately after the legally mandated no‑touch period of 5 min following circulatory arrest. This means that the organ donation procedure following euthanasia must take place in the hospital, which appears to be insurmountable to many patients who are willing to donate, since they already spent a lot of time in the hospital.

Case presentation: This article describes the procedure of organ donation after euthanasia starting at home (ODAEH) following anesthesia in a former health care professional suffering from multiple system atrophy. This case is unique for at least two reasons. He spent his last conscious hours surrounded by his family at home, after which he underwent general anaesthesia and was intubated, before being transported to the hospital for euthanasia and organ donation. In addition, the patient explicitly requested the euthanasia to be performed in the preparation room, next to the operating room, in order to limit the period of organ ischemia due to transport time from the intensive care unit to the operating room. The medical, legal and ethical considerations related to this illustrative case are subsequently discussed.

Conclusions: Organ donation after euthanasia is a pure act of altruism. This combined procedure can also be performed after the patient has been anesthetized at home and during transportation to the hospital.

Tajaâte N, van Dijk N, Pragt E, Shaw D, Kempener‑Deguelle A, de Jongh W et al. Organ donation after euthanasia starting at home in a patient with multiple system atrophy. BMC Medical Ethics. 2021;22(120).

How torturers are made: Evidence from Saddam Hussein’s Iraq

Christopher J Einolf

Journal of Human Rights
Journal of Human Rights

Abstract

Because of the difficulties in researching torturers, little is known about how they are recruited, trained, and authorized, and how they morally justify their actions. This study examines oral history testimonies from 14 former torturers in Saddam Hussein’s Iraq. Torturers volunteered for jobs in the security services, and attributed their choice of career to psychologically traumatic childhoods. Torturers were trained to think of their victims as subhuman and dangerous, and to cultivate mercilessness as a type of strength. They carried out torture under direct orders, and two were tortured themselves when they failed to obey. They justified their actions morally by diffusing responsibility, blaming victims, and using just-cause thinking. Overall, the findings show that there is no single path to becoming a torturer, as there is great variation even among torturers from a single country. Much more research is needed to fully understand how torturers think and work.

Einolf CJ. How torturers are made: Evidence from Saddam Hussein’s Iraq. Journal of Human Rights. 2021;20(4):381-395.