Thursday, March 26, 2015

Conscientious objection in medicine: Private ideological convictions must not supersede public service obligations


Canada’s Supreme Court decided that Canadians’ constitutional rights are violated by the criminalisation of assisted dying. Canada’s politicians are currently scrambling to come up with an assisted dying regime within the 12 month period that the Supreme Court gave them to fix the problem.

Since then the Canadian Medical Association, the country’s doctors’ lobby organisation, has insisted not only that doctors must not be forced to provide assisted dying, but also that doctors must not be required to transfer patients asking for assisted dying on to a colleague who they know will oblige these patients.(1) 

In many countries, including Canada, conscientious objection clauses protect – mostly - health care professionals from being forced to act against their individual ideological convictions. I suspect it isn’t unfair to note that these protections in the real world are nothing other than protections for Christian doctors who are unwilling to deliver services they would be obliged to deliver to patients who are legally entitled to receive these services, were it not for their religiously motivated objections.(2) Secular health care professionals could arguably avail themselves of conscience clauses, but in a liberal democracy, what reasonable conscience based cause could they have to refuse the provision of health care services to patients? Conscience clauses today are by and large a concession of special rights to Christian health care professionals, at least in secular Western democracies.

An uneasy compromise is often struck that stipulates that conscientious objectors must not be forced to deliver the health care services that they object to, but that they must ensure that patients will be transferred to a health care professional willing to provide the requested service. Typically they are prohibited from engaging in activities aimed at persuading the patient to see the errors of their ways. Typically they must also transfer the patient in an expeditious manner to their more obliging colleague.

Looked at from a conscientious objector’s perspective, this compromise is anything but a compromise. If I object to abortion because I believe that abortion is akin to murder, as Christian objectors happen to believe, surely my moral responsibility is barely smaller if I knowingly pass a pregnant woman looking for an abortion on to a colleague who will commit the act rather than if I do it myself. Christians are not typically known to see these issues through a consequentialist analytical lense, but even from their perspective, moral responsibility is barely reduced by the compromise. I sympathise with their objections to the compromise, because it is not a compromise. A compromise under the circumstances arguably is not feasible to begin with.  

Patients are entitled to receive uniform service delivery from health care professionals. They ought not to be subjected to today’s conscientious objection lottery. The Canadian Medical Association proposes that Canada ought to establish a website where patients can ascertain where the nearest non-objecting doctor is located.(3) One difficulty with this proposition is that in many rural areas there might be only one doctor and the next – more obliging - health care professional might actually be a flight away. Nothing would stop us from taking this proposal to its absurd logical conclusion: why not establish comprehensive websites where patients can find out whether their doctor objects on grounds of conscience to treating sexually active gay patients, or perhaps whether their conscience prohibits them from treating patients of a particular objectionable ethnicity. Consequentialists might well decide not to treat Ebola Virus Disease patients because of the risk involved, call it their consequentialist conscience. Health care service delivery would soon become a random event, entirely based on the vagaries of conscientious objections. Incidentally, Canadian doctors’ legal conscience protections do not actually cover these kinds of objections, because really these protections are designed to protect Christian doctors’ convictions, despite feeble attempts at giving them a lick of neutrality paint. The odd thing about conscientious objections is that there is no way to find out whether they are genuine or just a matter of convenience. Even if they were genuinely held beliefs, why should that constitute a sound reason for refusing service delivery?

The very idea that we ought to countenance conscientious objection in any profession is objectionable.(4) Nobody forces anyone to become a professional. It is a voluntary choice. A conscientious objector in medicine is not dissimilar to a taxi driver who joins a taxi company that runs a fleet of mostly combustion engine cars and who objects on grounds of conscience to drive those cars due to environmental concerns. Why did she become a taxi driver in the first place? Perhaps she should have opened a bicycle taxi company instead. I recall well, during an extended teaching stint in a dental school, that in every intake there were a fair number of dental students mentioning that they settled on going to dental school rather than medical school because of their objections to abortion. That seems a much more reasonable decision than to join a medical school and cause throughout one’s working life problems for patients seeking medical care for health issues that they are legally entitled to receive medical care for and that one objects to for one reason or another. Societies ought not to prioritise individual ideological commitments of some health care professionals over patients’ rights to receive professional care in a timely and hassle free fashion. Dying patients living in rural areas should not be subjected to an access-to-assisted-dying-lottery caused by conscientious objectors. Doctors are first and foremost providers of health care services. Society has every right to determine what kinds of services they ought to deliver.

That a doctors’ lobby organisation such as the Canadian Medical Association should aim to prioritise its members’ interests over patient access to care is not terribly surprising, albeit disappointing. Canadian legislators would do well to ignore its plea on this occasion.

 

UDO SCHUKLENK

 

 

 

 

 



[1] Sharon K. 2015. Unacceptable to force doctors to participate in assisted dying against their conscience: CMA. National Post March 05. http://news.nationalpost.com/2015/03/05/unacceptable-to-force-doctors-to-participate-in-assisted-dying-against-their-conscience-cma-head/ [Accessed March 26, 2015.]
[2] Leiter B. 2013. Why Tolerate Religion? Princeton, NJ: Princeton University Press.
[3] Kirkey S. Op.cit.
[4] Savulescu J. 2006. Conscientious objection in medicine. bmj 332: 294

14 comments:

  1. Let's focus on our arguments, not pride in our "identities" (a transient concept at best)March 29, 2015

    Thanks for the thought-provoking post; got me thinking. That's usually a good thing :)

    Abortion services aren't practiced by most doctors. In fact, I don't think most medical schools have rotations that include experience in abortive procedures. They are typically provided by specialists (in the procedure itself, or perhaps in an OBGYN capacity). So, just as dentists don't provide abortions, neither do all medical doctors. Not sure why neurologists, internists, dermatologists, opthamologists, etc. - all of which require an M.D. - would need to be skilled at abortions. Perhaps the compromise involves a would-be doctor positing, clearly and unequivocally, what area of medicine they plan to pursue. If it's to be a remote, rural doctor, then perhaps they should be prepared to do abortions, provide euthanasia, referrals, etc. But if they are pursuing neurology or some other specialty that never concerns itself with such issues, or that the doctor conscientiously objects to, then what is the harm in letting them apply their expertise and talents in a specialty that they were trained for and are skilled at? Surely, not only those who take one side on such a divisive issue such as abortion, are the only ones with the aptitude, skill, and intelligence to become good doctors.

    As for your comparison to a conscientious objector who decides to become a cab driver, yes, it would be ludicrous if he had a problem with driving a gas guzzling automobile but still insisted on being a cabbie. But again, the role of M.D. is far more varied and specialized than simply "stepping on the gas." Not sure if that analogy is the most helpful in making the point; the premises should line up a bit better.

    Finally, abortion, and perhaps to a lesser extent, assisted-dying, are divisive and polarizing issues. I can't think of any others, save these two, that even come close to polarizing people. Most medical issues/concerns are not so polarizing - infected tonsils, a clogged artery, a deficiency in serotonin, or whatever - aren't maladies that doctors conscientiously object to providing. To suggest that they, or other procedures are, is to engage in a bit of slippery slope fallacy.

    On a different issue, I've wonder about a reverse scenario. What of the patient who doesn't want service from a particular doctor? Say a woman suffers a miscarriage of a wanted pregnancy, a highly depressing and even traumatic experience for many women. She may need a D and C to clear the remaining tissue if it does not pass naturally and in a timely manner. However, she learns that the doctor who will be performing her D and C is a specialist who does them routinely, but as abortions. Now, on first blush, this would make sense since this doctor would be highly skilled in said procedure. But what do we do if the woman conscientiously objects to her "wanted child" being dealt with by an abortionist. Do we respect this concern, or do we use our hegemony and remind her that its "only tissue" and that she should be a "good patient" and let the "doctor do his job"? I'm concerned this would be a misogynistic response. Anyways, the relation I have in mind as I suggested this scenario, avoided a D n' C altogether simply because the tissue passed on its own...but she was clearly distressed by this possibility at an already traumatizing time in her life.

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  2. Let's focus on our arguments, not pride in our "identities" (a transient concept at best)March 29, 2015

    On another point, we should be careful about generalizing – even stereotyping – the viewpoints of Christians on the topic of abortion. While, yes, some are decidedly pro-life/anti-choice, not all are against it, and many in fact may encourage greater access to abortion services. Here’s a snippet from the United Church of Canada’s official statements by their executive council:

    “…We believe that abortion should be a personal matter between a woman and her doctor, who should earnestly consider their understanding of the particular situation permitting the woman to bring to bear her moral and religious insights into human life in reaching a decision through a free and responsive exercise of her conscience.

    THEREFORE

    1. We urge the Government of Canada to:
    1. Not use the provisions in the Criminal Code to regulate abortion;
    2. Enact and enforce penalties for people who without the required medical qualifications perform or attempt to perform abortions or who perform or attempt abortion in places other than those approved for that purpose;
    3. …to provide early access to early diagnosis and, if necessary, termination of pregnancy so that any abortion should be as early as possible.”

    Ironically, here’s what ardent atheist Christopher Hitchens has to say about the topic: “In order to terminate a pregnancy, you have to still a heartbeat, switch off a developing brain . . . break some bones and rupture some organs (circa 1989).”

    Clearly pensive about abortion procedures, he later went on to more fully articulate his viewpoint. Again, this is from a man who routinely and aggressively denounces Christian belief systems:

    “I do, as a humanist, believe that the concept “unborn child” is a real one and I think the concept is underlined by all the recent findings of embryology about the early viability of a well-conceived human baby, one that isn’t going to be critically deformed (or even some that are) will be able to survive outside the womb earlier and earlier, and earlier and I see that date only being pushed back. I feel the responsibility to consider the occupant of the womb as a candidate member of society in the future, and thus to say that it cannot be only the responsibility of the woman to decide upon it, that it’s a social question and an ethical and a moral one. And I say this as someone who has no supernatural belief.”

    And so we have a pro-choice United Church, and a pro-life leaning Hitchens “…someone who has no supernatural belief" taking less than stereotypical views on abortion. Accordingly, we are forced to call into question your claim that conscientious objection clauses “are nothing other than protections for Christian doctors who are unwilling to deliver services they would be obliged to deliver to patients who are legally entitled to receive these services, were it not for their religiously motivated objections.”

    Yes, there is likely a lobby, and there are clearly objections to providing certain services by certain doctors, but it would be a gross misjudgement for us to haphazardly assume that they are all religiously motivated, and that conscientious clauses are protections solely for Christian doctors. Given the above, they’re very possibly coming from those“…who has no supernatural belief" at all.

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  3. Dear Mr. Schuklenk,
    Interesting thoughts. But perhaps you forgot about paragraph 132 also from the Carter decision (Supreme Court of Canada) pursuant to which, Canadian legislators are legally obligated to listen to such "pleas" with a view to reconciling competing rights. For your convenience, paragraph 132:

    [132] In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

    - sjber

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  4. >Nobody forces anyone to become a professional.

    Very true. When they chose to become a professional, new regulations were not on the table for them to make a conscience decision of whether they want to get in, in the first place. Now, once they are in, the rules are being changed from under their feet. So how could they be blamed? (answer: They can't).

    But regardless, health care, by definition consists of ethics. There ARE no board of ethics of taxi drivers or chimney sweepers or pet fish sellers like you have in the field of medicine. If you can't have objections, that means you can't have objections to anything and if the time ever comes where the Peter Singers of the world prevail and it becomes morally alright to kill off a post-birth baby, you would claim doctors should not have any objections.

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  5. If I own the taxi company, I can use whatever vehicles I want. I can serve clients on horseback if I want to, and would be under no obligation to refer them anywhere else if they didn't like it (even if finding another taxi company on their own was inconvenient or mine was the only such service in town). Likewise, a doctor with his or her own practice shouldn't be forced to perform or refer for medically unnecessary procedures that violate his conscience.

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  6. Udo, let's see if I understand you. No objections other than yours have merit? I'm a proud atheist, a humanist physician. I deal daily with dying patients and their families. I have grave concerns about my moral well-being if I start guiding people in their suicide attempts, and/or actually kill them. I probably will refuse. I love how people removed from the actual act can get on high horses, but those of us at the bedside must just do as the bizarre court dictates.

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  7. And I love your unilateral right to delete/veto comments. Nice.

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  8. Thanks Ted. I'm not sure what to say with regard to your first comment (the longer one). Who says that no objections other than mine have merit? Well, other than you... - What are you referring to? As to the 'bizarre court', it is the highest court of the land, and it has ruled on Canadians' constitutional rights before. Sometimes one agrees, sometimes one doesn't, but whether one agrees or not, short of the parliament setting the court ruling aside, changing the Charter etc, it's binding on us. Simple really. You describing the Court's ruling as 'bizarre' doesn't change that situation. On this occasion, the ruling is supported by more than 75% of Canadians surveyed.

    Well, as to my unilateral right to delete/veto comments. I have not deleted or vetoed comments on this thread, as you'd be able to tell from the critical anonymous comments above (some of which are quite thoughtful). That doesn't mean I would not do so tomorrow, if they violated the Rules of Engagement posted on top of the blog. I would never delete a comment someone posts merely because I disagree with it. But there can be circumstances where I would feel obliged to delete content. The criteria that guide my decision-making are displayed on top of the blog. They are open for comment, too, btw.

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  9. Will try to avoid ad hominem, but yikes, the more I read your drivel, the more you frighten me. You sound a bit like Bill Maher in your vitriolic "anti-religiosity," but at least he's sometimes funny. I love Hitchens, and have found Dawkins informative if a bit obvious, but they both target the low-hanging fruit. (Maher often just sounds like a sophomore.) Do you applaud the non-jewish doctors in mid-20th century Europe (i.e. perhaps Christian) who did not strenuously object to nazism's excess, but rather simply sucked it up, professionals that they were?

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  10. Ok, good to know what you think of Maher, Hitchens and Dawkins. I don't think that adds anything to our discussion. In bioethics, when folks come up with Nazi retorts, you kinda know that you won the argument, as they always talk about something else. Let me ask you then: What do you think conscientious objection would have achieved in Nazi Germany? Roughly nothing. There would have been zero protections, the Nazis would have simply murdered any conscientious objector and moved on with their lives. So it's an example that doesn't fit the bill. Here we are talking about a liberal state where people's Charter rights would be violated if they were unable to access assisted dying, if they meet the criteria mentioned in the SCC decision. - Incidentally, in our liberal democracy conscientious objectors are protected, and, as one of the anonymous comments makes rightly clear, the SCC emphasises that. My concern is that in places like PEI (where women these days basically can't access abortion), Canadians' Charter rights will be violated when it comes to assisted dying, because the conscientious objector's objections count for more. I find that deeply troubling, you think that it's their moral right. We disagree.

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  11. Sorry about the "drivel" comment. And you're likely right about Maher et al. I was distracted by the ad on your blog. The vehement anti-religiosity does put me in mind of Maher though. As regards the Nazi reference, to be sure there is a degree of hyperbole there. But I disagree it doesn't fit the bill. That German doctors might have been executed had they refused to participate in acts they may have found reprehensible says little about whether they ought to have had a right to do so. You of course do not suggest executing physicians who may refuse to participate in euthanasia or assisted suicide, but you do clearly seem to deny them the right to follow their respective consciences. I abhor facile religious excuses for marginalizing people, and to be sure this is a tricky issue. But to deny one the right to refuse to morally compromise oneself, just because the state says the act is appropriate, well, that's got a hint of totalitarianism to it. Must one have religious affiliations to have a sense of right and wrong? That sounds like a position both you and I would argue against. Can you think of no medical procedure that, if you a physician, you might not wish to be part of? What if the court said female genital mutilation was a girl's right? Bizarre example perhaps, but what say you?

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  12. I stand by the "bizarre" description. Perhaps it's not a bizarre court, but the court has offered an embarrassingly "over-broad" and bizarre remedy to an exaggerated and profoundly mis-understood (because mis-represented) problem. peace

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  13. Quite all right, I don't take offense easily. - I meant to flag that it's pointless to debate conscientious objection in a state that had no functioning legal system to speak of. Same as North Korea today. Conscientious objection, as I mentioned in the blog entry, is a means for professionals in liberal democracies not to provide professional services that they otherwise would be obliged to provide. That's why I reject the idea that we should have conscientious objection protections for them. They don't do what they're designed to do, namely protect vulnerable professionals, rather they protect powerful well-heeled professionals in liberal democracies who don't want to provide services that otherwise they would be obliged to provide. Given that we as a society guarantee you essentially a monopoly on the provision of your professional services we have good reason to protect vulnerable patients from the conscientious objection lottery. Incidentally, that's also why the state must have more say in how you operate than someone who isn't a professional. After all, some patients cannot easily head elsewhere. Ask pregnant women in PEI...

    What I do think is that one should probably grandfather in professionals who came on-stream while the new policies were not in place (ie grant them a conscientious objection exemption). I don't think tomorrow's graduates should be given that option though, precisely because patients should not find themselves subjected to a conscientious objection service provision lottery.

    I can think of plenty procedures that I would not want to be part of. That's why I decided not to become a physician in the first place. That's also why at least some dentists become dentists and not physicians. People volunteer to join particular professions, there is no draft forcing folks to become doctors, or nurses. It's a choice that isn't cost neutral.

    A separate question is: why doctors at all? That's a different question altogether, but it's worth asking. Why not create a new profession (or a specialisation in the medical profession)? I would be perfectly fine with that (or that), to be honest. As long as it is tightly regulated (given what's at stake), that would probably be a better solution than declaring it the business of every medical graduate. However, if we give medical doctors qua medical doctors a monopoly on the provision of such medical services, I would remain opposed to conscientious objections opt-outs for the reasons mentioned. Basically you'd want to ensure that if an eligible patient goes to someone belonging to *the* profession designated to provide the service, the patient should be able to get that service and not end-up in a conscientious objection lottery, as far as the provision of the service is concerned.

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  14. So physicians, qua physicians, must always perform whatever procedures, offer whatever services, a society (or court) defines as medical? What about the example I offered above female genital mutilation? Would you respect a physician who said he or she simply could not do it?

    Who or what determines what is moral? Majority? Like the Florida orange juice gal? What about sterilizing multiparous aboriginal women, or women (or men) with Down's syndrome? Fairly obviously medical. Is it simply because the courts (Charter?) declare procedures wrong, right, or "rights" that they are? Or is it consent that makes the difference? What role does "informed" need to play in consent? Because as most of us privileged to work with the dying will tell you, most of the 75 -85 % of Canadians purportedly in favour of euthanasia and assisted suicide sound grievously ill-informed.

    Would you want a relationship with a physician who simply holds his or her nose, participates in acts s/he finds repugnant? Would that be integrity on her part, or something other? Would that person be trustworthy, a confidante, someone with whom you could be vulnerable?

    Physician as servant, I suppose. We're increasingly seen as service providers, as bartenders or waiters, giving our "clients" what their autonomy tells them is their due, and what Google and Dr. Oz tell them is the therapy du jour. Now some of us will get to kill them. Others of us will refuse, and deal with the consequences. Ok, Im done. Peace.

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