Saturday, January 28, 2023
Canadian Medical Association and Referral for Morally Contested Procedures
Sean T. Murphy (Independent), Canadian Medical Association and Referral for Morally Contested Procedures (2022):
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.