By Christina Lamb.

The recent defeat of a freedom of conscience bill, Bill 207, in Alberta, Canada, highlights the ethical problem of effective referrals elsewhere in the country. Particularly in the jurisdiction of Ontario where in the past year, physicians have been mandated by their regulatory College of Physicians and Surgeons (CPSO) and the Ontario courts to effectively refer patients for services contrary to their conscience and religious beliefs.

However, as a bioethicist with expertise in conscience, I was struck at how little of the public attention to Bill 207 and the ruling in the Ontario court case were about freedom of conscience and physicians’ rights. Rather, the lack of public awareness and the Ontario case highlight the need for more discussion around obligatory referrals which are a violation of physicians’ human right to freedom of conscience – one of the most basic or fundamental human rights. And this human right violation is a matter of grave concern for the Canadian healthcare context and beyond, since medical conducts are increasingly becoming more judicialized and legislated worldwide.

Conscience is the ability to make decisions based on information derived from moral principles to choose to do something that is ethical or refrain from doing something that is unethical. To freely determine what is ethical in order to act ethically for themselves and towards others, doctors need to rely on their conscience. In Canada the fundamental freedom of conscience is protected in Section 2(a) of the Charter of Rights and Freedoms. Internationally, the human right to freedom of conscience is upheld in the Universal Declaration of Human Rights and Freedoms in Articles 1 and 18. The Canadian Medical Association upholds physicians’ freedom of conscience through a national Code of Ethics. The CPSO’s policy on conscientious objection also recognizes that Ontario physicians may legitimately need to refrain from providing legal healthcare services which they conscientiously cannot provide in good faith. So far, so good.

However, CPSO policy and the Ontario court ruling stipulate that in order to preserve a patient’s equitable right to access for legal health care services, physicians are obliged to effectively refer their patients to providers willing to conduct the service doctors conscientiously disagree with. And herein lies the ethical concern: obligatory referrals make a doctor complicit in the act to which they conscientiously disagree with. Presumably this is a solution that balances patient and provider interests. However, is this policy and ruling an ethical concern? I think so.

There are several ethical issues with obligatory referrals in the Canadian context: the misuse of the proportionality test in the Ontario court ruling; the lack of explicit attention paid to conscience in the Ontario court ruling; the lack of judicial authority to resolve serious questions of morality; complicity of conduct in obligatory referrals.

In the Ontario court decision the proportionality test was used. The proportionality test has been viewed as a pragmatic measure for courts to determine the most rational legal balance in situations of competing rights. Specifically, the proportionality test has been used to balance rights in conflict as opposed to limit one in favour of another since human rights are incommensurable. However, given that only one fundamental right was in question in this Court case – the fundamental freedom to religion – the proportionality test was misapplied.

Further, the human right to the fundamental freedom of conscience was deliberately passed over in this case as well. These oversights indicate that conscience is being neglected in the Ontario courts. Failure to include conscience and make the distinctions necessary for the proportionality test to be applied suggest that judges may not the best equipped to rule on difficult moral questions pertaining to the medical profession. Interestingly, federal guidelines on euthanasia in Canada stipulate that no one can be forced to participate in euthanasia which is contravened in the complicity of conduct conferred on doctors through CPSO policy and Ontario Court ruling.

In international human rights law complicity means that “providing practical assistance or encouragement that has a substantial effect on the commission of a wrongdoing”. In bioethics, complicity is similarly understood as being involved or taking part in a conduct by protecting, supporting or stimulating it. Doctors who ensure a patient is placed in the care of another provider who will provide a service that they conscientiously disagree with are complicit in the act.

While healthcare providers certainly have a professional duty to ensure their patients’ care needs are met, they should not have to sacrifice their conscience to do so: the human right to freedom of conscience is an inalienable human right. In matters of grave dispute, it would be best to err on the side of ethics and justice and foster open discussion on how to best align patient interests with provider concerns. It would be the conscientious thing to do.

Note: An earlier version of this article first appeared in Convivium.

Author: Christina Lamb

Affiliation: Faculty of Nursing, University of Alberta.

Competing Interests: None to declare.