Ontario physicians and human rights

August 21, 2008

The College of Physicians and Surgeons of Ontario (CPSO) has circulated a draft statement called “Physicians and the Ontario Human Rights Code”. It has attracted some critical attention from the mainstream press, and from members of the College itself. In this post I propose to review the situation and attempt to think through the implications of the document.

The controversy

Criticism of the document has focused on a section entitled “Moral or Religious Beliefs” which reads, in part:

“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, 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.”

Despite some possible ambiguities (what, exactly, are “required” services?), the plainest reading of this passage is that physicians who have moral or religious objections to participation in a medical procedure, and who on the basis of those objections restrict services or terminate their relationship with the patient, risk punitive consequences.

The College asked recipients of the draft to submit comments by August 15, but in response to criticism that the policy was being pushed through without fair debate, the deadline has been extended to September 12.

Why now?

It is worth asking why this document is being drawn up at this time. The reason is alluded to in the document’s title: the Ontario Human Rights Commission (OHRC), which prosecutes violations of the Ontario Human Rights Code, underwent a major expansion in June of this year. They expect to move from roughly 150 cases/year to 3000 cases/year. This is the same Human Rights Commission that has been so roundly criticized (especially in connection to the well-publicized complaint against Maclean’s magazine) for its apparent indifference to due process — or, as our Premier puts it, its “less formal” legal framework.

To review: party A may file a human rights complaint against party B; the subsequent legal expenses for A are paid by the state, but B must pay his or her own; nothing prevents party A from filing simultaneous complaints against B with multiple provincial and federal Human Rights Commissions; even if A’s complaint is judged spurious, A faces no penalty, and B receives no compensation. I am not a lawyer, but the system seems practically designed to encourage reckless accusations.

At the present time, Ontario physicians are permitted to be conscientious objectors; they may refuse to involve themselves in actions they judge to be wrong. Given the expansion in the capacity of the OHRC, my suspicion is that the College is concerned that complaints will be brought against such doctors. Since the Commission is something of a legal loose cannon, the draft document warns the members of CPSO that “the College is unable to advise physicians how the Courts will decide cases”, and counsels them to “proceed cautiously”. Subsequent sections of the draft outline the procedure doctors should follow should they refuse to participate in certain procedures because of moral or religious objections. (The procedure includes reporting the circumstances in full to the College.)

The College’s position?

The most charitable interpretation of the draft is that the College foresees a threat from the expanded OHRC and is simply, and prudently, advising its members to be cautious. Yet there are some grounds for doubt as to whether the College wishes to protect the conscientious objectors among its ranks.

First, notice that, according to the excerpt above, even if the physician’s actions are found to not contravene the Human Rights Code, he or she may nevertheless face professional misconduct charges from the College.

Second, some members of the College have in the past advocated exactly this sort of policy. In June 2006 the Canadian Medical Association Journal — the flagship medical journal in Canada — ran an editorial arguing that physicians who refuse to participate in abortions on moral grounds should face professional misconduct charges. That editorial drew a firestorm of criticism, but it did indicate that at least some members of the College favour punitive action against those who refuse participation in actions they judge morally repugnant.

Finally, nowhere in the draft document does one find any reassurances that the College is committed to defending the dignity and moral integrity of its members. The impression one gets is that if a physician does run afoul of the Commission, the College will stand passively by.

On the ground

What circumstances could result in a human rights complaint against a physician? The Ontario Human Rights Code states that:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

My understanding is this: if a physician’s refusing a procedure or terminating a doctor-patient relationship could be construed as discrimination on any of the grounds listed, then they could be judged guilty of a human rights violation.

Much of the criticism of the proposed policy has circled around abortion, so let’s take that as a test case. Personally, I do not see how refusing involvement in an abortion could be interpreted as contravening the Code on any of the stated grounds. I suppose one could argue that if a doctor is unwilling to provide an abortion to an expectant mother, but would be willing to provide one to someone who is not pregnant, then it could be discrimination on grounds of “family status”, but that seems an absurd argument. Then again, never underestimate the perverse ingenuity of lawyers.

Or consider the morally controversial procedure of euthanasia. (It is not presently legal in Canada, but that may change.) Once again I do not see how refusing to consent to involvement in euthanasia could be contrued as contravening the Code. A doctor may refuse a lethal dose of morphine to someone with a severe disability, but then they would presumably refuse the same dose to someone without a disability, so it doesn’t constitute grounds of discrimination on the basis of “disability”.

Cases that could be construed as contravening the Code: A doctor who refuses to refer for a sex-change operation? A doctor who will not prescribe the anovulent pill? A surgeon who refuses to do an elective sterilization surgery? A doctor who refuses to help a lesbian conceive a child? I am guessing here.

When trying to assess the possible grounds for conviction, we must remember that in the world of the OHRC whether one can be prosecuted successfully hardly matters. It is enough for a physician’s refusal of involvement to “offend” a patient. If one is accused, one needs a lawyer, so even a spurious accusation (pertaining, if my reasoning is valid, to abortion for instance) levies a burdensome, and perhaps crippling, financial obligation on the accused.

Neither should we forget that the College has left open the question of whether it might compel its own members to participate in procedures, quite apart from the judgements of the OHRC.

The humane science?

What is most troubling about this affair is that no-one seems willing to stand up and defend the consciences of our physicians. This is actually surprising to me; despite the often cacophonous state of our moral discourse, I know of no-one who defends the proposition that “It is good to act against one’s conscience”.

The duty of each person to honour their conscience is a common moral insight.  My own tradition, Catholicism, teaches unequivocally that “Man has the right to act in conscience and in freedom so as personally to make moral decisions. He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.” [CCC, 1782] So solemn is this duty of obedience that it applies even when one’s conscience makes judgments that differ from Church teachings. [CCC, 1790]  All Protestant traditions of which I am aware teach a similar duty of obedience to conscience, which is viewed as the voice of God in the human soul.  Nor is the principle unique to Christianity: Socrates had a daemon that warned him against committing evil acts, and he took such warnings as normative for himself.  I am less familiar with the status of conscience in other religious traditions, but I would be very surprised if they differed substantially from those already mentioned.  Even moral relativists affirm the proposition (“Everyone should do what is right for them.”).

To compel someone to commit an act they deem wrong, therefore, is clean contrary to our religious and philosophical traditions and to common moral insight.  It is bad enough to see it permitted in any context, but it is especially dispiriting to see it threatening in medical practice.  Medicine has the honour of being the humane science, the science in which the physician puts art, science, compassion, encouragement, and moral judgment at the service of his or her patient.  Indeed, medicine is inherently moral, since it aims at the healing, and not at the destruction, of the body.  (Note that many of the controversial practices, such as abortion and euthanasia, are those which do not aim at health.  They are, in other words, not medicine.) It is in this moral character that much of the dignity of the profession consists.

The vision of medicine implicit in this draft document is a betrayal of this tradition, for it essentially proposes that physicians should be reduced to the role of technicians, who implement the state’s rules or the patient’s demands without asking questions.  That a government agency, and even the medical College itself, should wish or permit such a declension is a terrible insult to a noble profession.

Final thoughts

Most of this discussion has focused on the draft document from the College of Physicians and Surgeons of Ontario, but it is not the root of the problem.  I strongly suspect that this document is mostly an attempt by the College to warn its members (and protect itself) against the unpredictability of the Ontario Human Rights Commission.  This is a political problem that is larger than the CPSO.  Yet the CPSO is a powerful group, with prestige and influence, and if they would publicly and vigorously defend the freedoms of their members it would carry weight.  That it has so far shown no signs of doing so is disappointing.

I am not a student of political theory, but the concept of “human rights” being deployed by the Commission seems suspicious.  Even if one has a right, in some sense, to receive a particular medical service, I cannot see how it follows that one has a right to receive it from any and every doctor, especially when the provision of such a right involves such a direct and serious offense to the rights of the physician to freedom of conscience and religion.  The patient seems disproportionately favoured.  It is surely possible to protect both access to services and the right of doctors to conscientiously object.  (If you really cannot find anyone to do a procedure, that is probably a good sign that you ought not to be seeking or providing it.)  It is true that in some remote parts of Ontario where doctors are scarce it might be costly to provide controversial services to those seeking them if their local physician refuses; it is also costly to have doctors leaving the province for more liberal jurisdictions.

I do plan to write to the President of the College of Physicians and Surgeons of Ontario, and to the Premier, about this issue.  At the present time I am not entirely certain what I will say, but thinking these matters through has been helpful.  If anyone takes an interest in this issue, I welcome constructive comments.

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6 Responses to “Ontario physicians and human rights”

  1. Matthew Says:

    There was a ruling just a few days ago in California that might shed some light on this debate. It involved a lesbian who tried to get fertility services. The state has a conscientious objector law that allows physicians to refuse to do procedures they find morally objectionable. The court found that the clinic could not discrimate against her. Here’s the Los Angeles Times editorial on the decision: http://tinyurl.com/5qpsyy . It says in part, “Physicians can refuse to perform any procedure, such as abortion or in vitro fertilization, that they find morally objectionable. But if they do perform such procedures, they cannot provide them to some groups of patients and not to others.”

    I can’t see a doctor with deeply held religious beliefs being put in the position of being forced to provide abortions or perform euthanasia because they would never have trained to do these things in the first place (if they must be trained in these things in order to qualify for their speciality, perhaps they should find another speciality). It’s the other stuff, the non-contraversial stuff as Craig puts it, where you get into tenuous moral ground. If a doctor who provides a service refuses that service to a section of the population on moral grounds, it’s hard not to see that as discrimination. Especially, since it can easily lead to reduced services for portions of the population, which would violate the universality of access to our health care system. The physician, at least in California, is not absolutely forced to do the procedure as long as they find someone else that is willing to do it. I think the California decision points to a good middle ground that protects both the physician’s conscience and the patient’s access to care.

    Other than that, I completely agree with you that the human rights commissions across the country are broken and that this is probably the college’s reaction to that reality.

  2. Adam Hincks Says:

    What is interesting in the passage you quote from the document is that moral, religious and cultural beliefs are classified as “personal”. But each of these, especially the religious and cultural, are inherently communal. They are not individually held beliefs, but widely shared. It is this corporate nature, after all, which is part of what defines religions and cultures. So the whole premise seems flawed. The real root of the problem is a radically individualistic worldview which is widespread in our society. We are beginning to despair of finding common moral norms and instead make the will of each individual the highest moral criterion. It is, in a way, deeply ironic that the medical profession would consider applying such a principle to the service of their patients.

    I’m sure you know this, but if you do write letters to the president of the college or to the premier, make it very concise: not more than three short paragraphs!

  3. Matthew Says:

    I think the premise that religious and cultural beliefs are widely shared in Canada is also flawed. We live in a multi-cultural and multi-ethnic society, possibly the most diverse culture on Earth. One size does not fit all and even if we try to apply a catch-all statement of morals such as the UN’s Universal Declaration of Human Rights, it won’t reflect the morals of each religious community (which is to be expected given its universality). For instance, from a Catholic perspective, it doesn’t prohibit abortion or the use of birth control.

    The best we can do as a society in the face of so much diversity is to fall back on the “radically individualistic worldview”, but only so far as that worldview does not conflict with the morals of society collectively. It’s not like we don’t have morals, it’s just that they are the result of dialog instead of strict religious belief (which is why religious communities and individuals should be part of the dialog and I hope that Craig does write those letters (in short concise form as you suggest)). For instance, society wouldn’t stand for a white doctor refusing to treat black patients, or an Jewish doctor refusing to treat gentiles.

    The conflict here is between the collective morals (which exist but are constantly evolving) and the potentially stricter beliefs of religious communities. I believe the college, in response to the broken human rights system, is saying that the collective morals trump any stricter beliefs that a individual or community might hold. The challenge in the short term is to find a balance between the two and I think California may have found that balance. The challenge in the long term is to move the collective morals of society closer to your religious community’s worldview. I wish you good luck because I think it’s an uphill battle. If it’s any consolation, there probably hasn’t been a generation for the last 400 years that hasn’t lamented the moral decay of society.

  4. cburrell Says:

    Matthew: The California case does provide an interesting comparison. The most important difference between that situation and ours, it seems to me, is that in Canada medical services are provided by the state, rather than by private clinics. In Canada, it is not so easy for doctors to choose what services they do or do not provide. Even if a doctor absolutely refuses a particular procedure or service, without discrimination against any particular group, it may still constitute professional misconduct, as the College’s draft document makes clear. As such, I am not convinced that it is quite so easy for doctors to insulate themselves from activities that are morally objectionable. And while it is true that few pro-lifers will choose to perform abortions for a living, it is quite possible for any doctor to be asked to refer for an abortion. If they refuse, is that professional misconduct? In my opinion, this draft document is all too unclear on such questions.

    The nature and limits of Canadian pluralism is too complicated a topic for me today, but in any case on this topic I’m not sure it is relevant. I argued in the original post that the moral duty to heed one’s conscience is widely acknowledged, across cultures and on different sides of the political spectrum. If I am right, then to single out religiously-formed consciences for disapprobation is prejudicial.

    Adam: Good of you to notice that sleight-of-hand. But if the problem of the OHRC is too big to solve, then the problem of punctiliar individualism is a mammoth. We both know that the privatization of religious belief, though it makes no sense from a religious point of view, has been part of the divide-and-conquer strategy of the Enlightenment since the beginning. As Matthew points out, it has succeeded remarkably well.

    *

    This weekend I had an off-line discussion about this with a friend. He pointed out that the College’s guidelines may actually themselves contravene the Human Rights Code, insofar as threats of professional misconduct on the basis of religiously-motivated actions could constitute discrimination on the basis of “creed”. That’s an interesting line of argument.

    He also argued that the College is doing little to allay concerns that this is a political move disguised as legal necessity. They have not cited any complaints where a patient has complained that they were denied treatment by a doctor because of religiously motivated bias. They have not been ordered by the Commission to change their guidelines. At best, their actions demonstrate that they are unwilling to put up a fight for freedom of conscience; at worst, they are spearheading an uncalled for and unnecessary attack on the freedom of conscience of their members. I wish I could disagree with that judgment with some confidence.

  5. sandrar Says:

    Hi! I was surfing and found your blog post… nice! I love your blog. :) Cheers! Sandra. R.

  6. cburrell Says:

    Thank you, Sandra. I do my best to keep things interesting around here. Feel free to stop by any time.

    Here’s an update on the issue I was discussing in this post: the Ontario College of Physicians and Surgeons (CPSO), which is the accrediting body for our doctors, met with stiff opposition from the Ontario Medical Association (OMA), which is the professional organization for our doctors. The OMA stated bluntly that the proposed policy to punish conscientious objectors was unacceptable, and they recommended that the policy be dropped. The CPSO met them halfway — only halfway, rather disappointingly — and softened the wording of the policy. To my knowledge no-one has been brought up on misconduct charges for conscientious objection.

    Not yet, anyway. The nature of such things is that those who, for their own perverse reasons, want to see such policies adopted do not give up so easily. They may lie quietly for a while, but they will be back. There is no extended rest for the wicked.

    Here is a good column written last year after the OMA announced their opposition to the CPSO’s plans. It gives a good overview of the issue and the aftermath.


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