How good is the CPSO’s solution?

Nine years ago the Canadian Medical Association (CMA) pushed for a solution to a problem of patient access in health care – specifically “reproductive health care” – in an editorial titled “Abortion: Ensuring Access.” What did it say were the issues?

•  All Canadian women do not have access to abortion, and

access to reproductive health care is essential to women’s health.

•  The “promise of reproductive choice” is not being fulfilled by Canadian physicians, who

should work to ensure that abortion is available to all women who seek it … and that initiatives to compromise access are resisted.

But this warning was ignored. Many Canadian physicians have instead persisted in the exact practices that caused this restricted access (taking no part in any activity that was a step on the way to ending the life of an unborn human being) – refusing, for instance, “to provide appropriate referrals,” that is, to assist a woman seeking an abortion to find a doctor who could help her. They continued even though, in the eyes of the authors speaking for the CMA,

health care professionals who [act in this way] are committing malpractice and risk lawsuits and disciplinary proceedings … [and] also breach the CMA’s Code of Ethics … [and] also violate CMA policy and positions taken on abortion, including, for example, its positions taken on … access without delay.

Because that ample warning has not worked, last week the College of Physicians and Surgeons of Ontario [CPSO] adopted a new policy, titled Professional Obligations and Human Rights.  According to its news release: 

A key feature of the revised policy is that it requires physicians to provide their patients with an effective referral to another health-care provider for those services the physician chooses not to provide for reasons of conscience or religion. An effective referral means a referral that is made in good faith with a view to supporting, not frustrating or impeding, access to care.

Is this a reasonable solution to this problem?

The CPSO says yes, for four reasons.

First,  the new policy is the result of

two extensive consultations;

second,  said CPSO President Dr. Carol Leet,

the referral requirement … reflects the expectations of the Ontario public;

third,  this measure solves the problem of guaranteed access:

the policy protects patient rights by ensuring that patients are not prevented from accessing care that is clinically indicated and legally available because a physician objects to that care on moral or religious grounds…;

and fourth,  Dr. Leet added, it

strikes an appropriate balance between patient and physician rights…. The policy protects patient rights … while also respecting physicians’ right to freedom of conscience and religion.

These reasons are less good than they may appear.

The first point begs the question. That ‘there was a process’ never tells you whether its results are good.

Only if the process was a good one, bringing to the problem correct thinking on every crucial point, would the result be good. And that is the very thing we are trying to establish: is this a good ruling; has it thought carefully on every key point?

On the second point Dr. Leet is guilty of error. Could I claim – having heard from many Ontario Muslims expressing their view that Doctors ought to (etc.)  – that these are the expectations of Ontario Muslims?

There is no fallacy more common, or more likely to deceive, than the one now before us,

says an old logic textbook (one we study at Augustine College). It is called the Fallacy of Partial Reference:

Because it is easy to find people who hold such a view, we can expect everyone to hold it.  

Well, that is simply false. Until some actual evidence is presented as to what “the Ontario public” thinks, there is very little to boast of in a claim that amounts to ‘many people support this policy’.

But then, say we get that data: let’s say 77 percent of Ontarians want this exact ruling.  Is this really a voting matter,  or is it the task of the governors of the medical profession to lead the province to the right conclusion, by putting forth good reasons?

The third point is the point of effectiveness: a measure is a good measure when it accomplishes its objective. Does this measure do that?

If over the past nine years doctors were “committing malpractice” in the eyes of the CMA when they refused to offer referrals for abortion, and yet still continued to do so, what will such evidently stubborn people do now?

Some will perhaps cave in, thinking that in Ontario the profession now means business. But it is very clear that a great many will not and will simply wait to see what happens. Some of these doctors will then, presumably, find themselves subject to “malpractice … lawsuits and disciplinary proceedings” – and how will that affect them? Some in this group will find that they cannot afford to continue in medicine and will simply drop out, or go practice elsewhere (perhaps in the mission field outside Canada, where no such barriers to medical service will be found).

And there  is an interesting concept to set beside ‘barriers to access’: barriers to service. The CPSO is proud of this “policy that safeguards human rights and puts patients first,” but are patients in fact ‘put first’ if the roster of doctors serving them will be whittled down by this policy, over non-compliance in abortion referral?

If physicians “should not prevent women from accessing abortion”  it might equally be said that the medical profession should not prevent doctors from serving patients,  by taking punitive action against them over matters that are not clearly medical and not within the competence of any physician to decide, as a physician.

One would expect the CPSO and the CMA to be knowledgeable on the topic of medical competence. Is it medicine  that tells them about the subordinate status of conscience, as a thing less relevant  to health care than the profession of a particular service? (It is less relevant to some patients, perhaps, but how do their priorities gain such leverage over governance of a profession?) And if on this point these bodies made an error that damaged Canadian medicine…?

And is the plan to ‘put patients first’ (however much it might sound like a winner) the right plan to back as a professional policy? Presumably the CPSO and the CMA have a particular mandate to bring Canadians the needed complement of physicians  – a body of physicians that is presumably reflective of Canadian demographics (on the demographic point please see Dr. Patrick’s recent post). If Canada is 67 percent Christian (as it is), and Christian doctors are driven from the profession, how does that help the Canadian patient? Will that loss simply be topped-up from the 24 percent “Non-religious” in the population?

There are far less injurious ways to address the problem of access. As Iain Benson has suggested,

If the College is genuinely concerned about the provision of information regarding care there are other less intrusive and destructive ways of accomplishing this goal.

Would it not be wise for those charged with governing the medical profession to do what it can to see that this profession is flush with caring physicians who are equipped to practice at least by the traditional understanding of medicine – that is, leaving to individual doctors the task of deciding questions traditionally not associated with medicine at all (for instance, whether to kill living human beings)? That ‘traditional understanding of medicine’ is hardly bizarre or indefensible.

So what practical effect will the policy have?

That doctors reluctant to refer (who are not only Christians) will now come to heel is a fantasy. If these doctors are serious about what they call the seriousness of matters of conscience  (which involve absolute prohibitions), we can expect them to carry on serving patients in accord with the Ten Commandments, the will of Allah, the natural law … until the medical profession drives these people out of medicine. Will that “ensure access”? And if somehow it does the question we will then be asking is, At what cost?

So even if the policy were entirely effective  we could still not be sure, on that basis, whether it is a good policy, because there is more to think about than patient rights over access to this service.

And, fourth, does the policy ‘respect the physician’s right to freedom of conscience and religion’?  The reason the CPSO thinks it does is that, by this policy,

Physicians are not required to perform abortions….

All they are asked to do is fill out a slip of paper naming another physician who is qualified and willing to advise on whether to have an abortion, and how to go about it.

It should be noted that the CPSO must then think  that if the physician does not carry out the abortion, his conscience will be set at ease: it thinks, in other words, that all the doctor is concerned about is his own direct participation in the act. But how could anyone think this?

Does anyone at the CPSO believe that a person who objects to murder is only concerned about his own soul, and would be satisfied to say, if he were actually asked to kill a person,

“It’s against my religion. But I have a cousin….”

Christian doctors who are against abortion are not concerned only with their own souls; they are

• against killing the innocent, and thus:
• against killing the innocent themselves,
• against the innocent being killed,
• and against the involvement of the medical profession (concerned with care of natural life) in killing.

But they have little opportunity to do anything in line with this commitment to justice except:

• not killing the innocent themselves,
• not aiding in the death of this innocent unborn human being,
• and keeping the medical profession free of such killing in the small scope of their own practice.

This is all these doctors can do. They do not bomb clinics, or stop other doctors from participating in abortion, or sabotage the medical profession’s involvement in it. Dr. Julie Cantor, writing in the New England Journal of Medicine against doctors who refuse to refer for abortion, said that,

Physicians should support an ethic that allows for all legal options, even those they would not choose.

But these Christian doctors do just that:  they are not agitating to transform medicine, because they know there are doctors who believe in abortion on compassionate grounds and, if the law were to criminalize abortion again, the practice of abortion would still go on. There would be a thousand Dr. Morgentalers, who out of compassion for women seeking abortion would do what they know how to do. These Morgentalers would obey the voice of their conscience.  (Christian doctors might, despite this, be working to change the laws on abortion and limit the entire medical profession in that way, but that is their right as citizens.)

The CPSO is mistaken in thinking  that its policy is good because it accommodates conscience – because it is mistaken in thinking that freeing the doctor from direct participation could do anything  to satisfy his or her conscience. That it does not permit doctors to act on their quite legitimate belief that abortion kills an innocent human being is not any accommodation of that belief at all.

And, turning to a last issue, is the CPSO right to think that its policy is patient-oriented  while these doctors’ behaviour is self-concerned?  I am quite sure that is what it does think.

Ask yourself, if the CPSO has drafted a policy that “puts patients first” then who, in the eyes of the CPSO, are the pro-life doctors putting first? Themselves. That has been the view in the debate on this issue, which has detoured the status of the embryo or fetus and focused instead on the issue of conscience as a kind of self concern  in which a patient is made to pay for the doctor’s fastidious attention to his or her own conscience. As Dr. Cantor wrote, 

Medicine needs to embrace a brand of professionalism that demands less self-interest, not more…. Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it. Patients need information, referrals, and treatment. They need all legal choices presented to them in a way that is true to the evidence, not the randomness of individual morality.

What the CPSO is calling, in a similar vein, the doctor’s

personal values and beliefs

are indeed personal in that it is a person who holds them –
but in that sense all our beliefs are personal. Are all our beliefs obstacles to the practice of medicine? No: it is ‘personal beliefs’, beliefs that are personal in some other sense, that are the problem. But “personal values and beliefs” are not the inner voice of individuality  or however these critics must see this.

It sounds like the CPSO may have replicated the sketchy thinking of Dr. Cantor, whose words I quote making only one replacement (‘policy’ in the place of ‘law’):

Patients deserve a [policy] that limits objections and puts their interests first…. Health care providers … should cast off the cloak of conscience when patients’ needs demand it.

For the CPSO to issue a good ruling that takes into account  a “physician’s right to freedom of conscience and religion” would require it to take into account what conscience actually is. It has not done that yet.

It has yet to demonstrate any understanding of ‘rights of conscience’ that makes these more than optional notions that might be set aside in the care of others – idiosyncratic ‘inner promptings’ that are entirely secondary to the real purpose of a competent physician, which is to serve the ends of a profession as its current governors happen to define it.

Edward Tingley

SOURCES

Iain Benson, “Physicians, Patients, Human Rights, and Referrals: A Principled Approach to Respecting the Rights of Physicians and Patients in Ontario,” Cardus (12 September 2008)

Julie D. Cantor, M.D., J.D., “Conscientious Objection Gone Awry: Restoring Selfless Professionalism in Medicine,” New England Journal of Medicine  360:15 (9 April 2009), 1484-85

College of Physicians and Surgeons of Ontario, “News Release: College Council Approves New Policy That Safeguards Human Rights and Puts Patients First,” 6 March 2015

College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights, 6 March 2015

Sanda Rodgers and Jocelyn Downie, “Abortion: Ensuring Access,” Guest Editorial, Canadian Medical Association Journal 175:1 (4 July 2006)

One Commment

  1. John Robertson says:

    Well Said Dr. Tingley. I fear for the province or the country that truly believes asking physicians to compromise their morals is wise.

Leave a Comment

Time limit is exhausted. Please reload the CAPTCHA.

Subscription

Sign-up to for email updates: