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

Conscience Clauses, Health Care Providers, and Parents

Nancy Berlinger

Conscience Clauses, Health Care Providers, and Parents

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.

Our Inner Guide: Protecting Freedom of Conscience


Conscience, though inherently individual, is vital to the common good. Using current case studies from Canada that engage freedom of conscience, this paper offers concrete recommendations as to how this human right can be robustly protected at home and abroad.

Our Inner Guide: Protecting Freedom of Conscience

Executive Summary
Freedom of conscience appears in the Canadian Charter of Rights and Freedoms, the Universal Declaration of Human Rights, and many other bills of rights. Yet, despite its universality, this human right is, by and large, universally neglected by courts, legislatures, and policy-makers.

Today, more so than before, reliance on freedom of conscience implicates the interests and rights of other citizens. Owing to modern phenomena such as globalization, many of us live in deeply diverse, multicultural, and plural societies. These current characteristics of many Western societies inevitably increase the prospect of sharp disagreements between citizens on what is good, right, and true—as well as the need to resolve these disagreements. This paper takes up the challenge of grappling with the clash of interests and rights in these cases.

This paper unpacks what freedom of conscience protects, why it is worth protecting, and when it may—and may not—be limited. For the sake of individual flourishing, peaceful coexistence, and liberal democracy itself, we say that freedom of conscience merits robust protection.

We aim to raise awareness of the importance of freedom of conscience in a liberal democracy and alert Canadians to the pressing need for this human right to be afforded due respect. Using current case studies from Canada that engage freedom of conscience, we offer concrete recommendations as to how this human right can be robustly protected at home and abroad.

History teaches that conscience can instigate fundamental social change, for the better. Conscience not only safeguards core convictions—it also promotes moral growth, for individuals and societies alike. Conscience, though inherently individual, is vital to the common good. To realize societies that are just and equitable, it is safe to say that freedom of conscience is indispensable. It is our intention that this paper will contribute to an essential public discussion on freedom of conscience and how we can better shape our laws, and ourselves, in accordance with this neglected freedom.


End-of-Life Options Act Fails to Protect Conscience Rights

Andrew S. Kubick

Ethics & Medics
Ethics & Medics

The New Mexico Senate passed the Elizabeth Whitefield End-of-Life Options Act on March 15 by a vote of twentyfour to seventeen. That vote followed a February vote of thirty-nine to twenty-seven in the lower chamber. Now with the stroke of Governor Michelle Lujan Grisham’s pen, New Mexico has become the ninth state in the United States to enact a physician assisted suicide law. (The practice also is legal in Washington, DC.) The End-of-Life Options Act is incompatible with the moral teachings of Catholicism (along with several other religions). A provider who embraces the Catholic faith will be faced with the following ultimatum: You can either write a prescription for a lethal dose of a sedative or refer the patient to a physician who will then write it, or you can suffer the professional consequences of conscientiously objecting to both of those options. It is clear upon review of the End-of-Life Options Act that it fails to fully protect the conscience rights of providers. . .

Kubick AS. End-of-Life Options Act Fails to Protect Conscience Rights. Ethics & Medics 2021 Jun; 46(6): 1-2.

(Book Review) What it means to be human: The case for the body in Public Bioethics

The deficiencies and dangers of ‘radical individualism’

Margaret Somerville

What it Means to be Human (book)

O. Carter Snead. What it means to be human: The case for the body in Public Bioethics. Cambridge, Mass: Harvard University Press, 2020, pp 321. ISBN-10: 0674987721.

Anyone concerned about the current values conflicts in our societies should read this book. Although it focuses on conflicts in public bioethics, the insights of the author, O. Carter Snead, have application to a much broader range of values conflicts in what are sometimes called the “culture wars”.

Snead starts with a history of American Public Bioethics. He then asks, “What does it means to be human” and addresses two competing responses – “expressive individualism” and “embodiment” – and articulates the anthropology (the study of human beings and societies) that informs each of these views. He argues the former is inadequate on at least two fronts. First, it “forgets the body” and sees the person as only a mind, a self-actualizing will. Second, it does not contemplate or accommodate human relationships and the reality that we are social beings.

Snead then takes an innovative approach to legal scholarship. He proceeds to an in-depth analysis of six judgments handed down by the Supreme Court of the United States in relation to abortion. He undertakes this analysis in order to determine the law’s view, as manifested in these cases, of what it means to be human, that is, the anthropology that undergirds and informs the judgments he considers. . . continue reading

Equality of Autonomy? Physician Aid in Dying and Supported Decision-Making

Megan S Wright

Arizona Law Review
Arizona Law Review


. . . This Article is the first to address whether terminally ill persons with cognitive impairments should be able to access PAID [Physician Aid In Dying] through supported decision-making. If provided with decision-making support, terminally ill persons with cognitive impairments may be able to elect PAID intentionally, voluntarily, and with understanding; that is, despite their impairments, such persons may be capable of autonomous end-of-life decision-making. This Article thus argues that the principle of equality demands that the law not exclude terminally ill supported persons with decisional impairments from PAID. This Article also argues that supported decision-making is a superior means for terminally ill persons with decisional impairments to access this end-of-life option compared to advance directives, which have numerous and well-documented problems. . .

Wright MS. Equality of Autonomy? Physician Aid in Dying and Supported Decision-Making. Arizona Law Review. 2021;63(157):158-197.

How should a liberal democracy react to conscientious objection claims

Panel 4: Reacting to Conscience Claims in the Public Square

Royal Irish Academy Symposium


  • Mr Bryan Dobson, RTÉ


  • Dr John Adentire, Queen Mary University of London
  • Professor Fiona de Londras, University of Birmingham
  • Senator Michael McDowell, Houses of the Oireachtas

How legislators and governments in liberal democracies should react to claims of conscience.

Royal Irish Academy: How should a liberal democracy react to conscientious objection claims

How should a liberal democracy react to conscientious objection claims?

Panel 2: Conscience in Legal Perspective: Challenges and Controversies 

Royal Irish Academy


Professor David Smith, RCSI University of Medicine and Health Sciences


  • Advocate General Gerard Hogan, Court of Justice of the European Union
  • Professor Ronan McCrea, University College London
  • Dr. Regina McQuillan, St Francis Hospice

Conscientious objections in healthcare, services, resistance to authoritarian regimes: effects on third parties: meaning of ‘complicity’ .

Royal Irish Academy: How should a liberal democracy react to conscientious objection claims?

How should a liberal democracy react to conscientious objection claims?

Panel 1: Concepts of Conscience

Royal Irish Academy Symposium

Chair: Professor Bert Gordijn, Dublin City University


  • Professor Kimberley Brownlee, The University of British Columbia
  • Dr Katherine Furman, University of Liverpool

Discussion of concepts of conscience, freedom of conscience, conscientious objection, civil disobedience, individual and corporate conscience