Submission to the College of Physicians and Surgeons of Ontario -- Re: CPSO Policy Statement #5-08 -- Physicians and the Ontario Human Rights Code

Abstract

The Ontario Human Rights Commission made a serious error in 2008 when it attempted to suppress freedom of conscience and religion in medical profession on grounds that physicians are providers of secular public services. In publicly perpetuating this error, Commission has contributed significantly to anti-religious sentiments and a climate of religious intolerance in Ontario. Both were on display earlier this year when it became front page news and a public scandal that three physicians had told their patients that they would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful. The physicians had followed guidelines of Canadian Medical Association and College of Physicians and Surgeons of Ontario. Physicians must advise patients about treatments or procedures they are unwilling to recommend or provide for moral or religious reasons, so that patients can seek services elsewhere, but are not required to help patients obtain services or procedures they believe to be wrong.The arrangement is a compromise that safeguards legitimate autonomy of patients and preserves integrity of physicians, but it has been continually attacked by activists who want to compel objecting physicians to provide or facilitate abortion and contraception, and, lately, euthanasia. Essentially, activists assert that physicians have a duty to do what they believe to be wrong because they must not act upon their moral or religious beliefs.However, it is incoherent to include a duty to do what one believes to be wrong in a code of ethics, very purpose of which is to encourage physicians to act ethically and avoid wrongdoing. Moreover, one cannot practise medicine without reference to beliefs, whether they reflect a secular ethic or a religious one, and neither a secular ethic nor a religious ethic is morally neutral. Thus, demands that physicians must not act upon their beliefs or must practise medicine in a morally “neutral” fashion are unacceptable because they are impossible.The demand that physicians must not act upon religious beliefs because medical practice is a secular profession is unacceptable because it is erroneous. The Supreme Court of Canada has acknowledged that a secular society is not faith-free; it includes both religious and non-religious believers, and rational democratic pluralism must make room all. The full bench of Court has warned that to disadvantage or disqualify exercise of religiously informed conscience in public affairs is an illiberal distortion of liberal principles.If it is legitimate to compel religious believers to do what they believe to be wrong, then it is equally legitimate to compel non-religious believers to do what they think is wrong; everyone would have a duty to do what is believed to be wrong. Hence, compromise worked out by Canadian Medical Association not only safeguards integrity of physicians and legitimate autonomy of patients, but protects community against temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to participate in what they believe to be wrong - even gravely wrong - even murder - and punish if they refuse.Freedom of conscience and freedom of religion are not unlimited, but mantra, the freedom to hold beliefs is broader than freedom to act on them is inadequate. More refined distinctions are required to address difficulties that arise in a pluralist democracy. One of reflects two ways in which freedom of conscience is exercised: by pursuing good and avoiding evil. There is a significant difference between preventing people from seeking perfection by doing good that they wish to do and destroying their integrity by forcing to do evil that they abhor. As a general rule, it is fundamentally unjust and offensive to force people to support, facilitate or participate in what they perceive to be wrongful acts; more serious wrongdoing, graver injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides strongest motive for justice. It is inconsistent with best traditions and aspirations of liberal democracy. And it is dangerous, since it instills attitudes more suited to totalitarian regimes than to demands of responsible freedom.This does not mean that freedom of conscience exercised to preserve personal integrity can never be limited. It does mean, however, that even strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied here. Like use of potentially deadly force, if restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in most exceptional circumstances. When College of Physicians and Surgeons of Ontario receives complaints from patients who have been unable to obtain services they want, College should help connect patients with willing service providers. That would be more helpful than attempting to suppress freedom of conscience and religion in medical profession.