Marika Warren is an Assistant Professor in the Department of Bioethics, Dalhousie University.
In early July The College of Physicians and Surgeons of British Columbia dismissed a complaint against Dr. Ellen Wiebe made by the Louis Brier Home and Hospital, an Orthodox Jewish long term care facility. Dr. Wiebe had provided medical assistance in dying (MAiD) to a patient who resided in Louis Brier who had requested it. She thereby contravened the Home’s policy. Cases such as these are increasingly likely as the policies of institutions exercising conscientious objection conflict with both patients’ interests in accessing MAiD (and other services) and providers’ interests in practicing with integrity. One way to resolve such conflicts would be to recognize a claim to conscientious provision of health care services that parallels the claims of individuals and organizations to conscientious objection.
Conscientious objection provides protection for individuals who find their deeply held values at odds with the way that they are expected to act in their role. In health care, this means that the patient’s interest in receiving a particular service or treatment is in tension with the provider’s interest in maintaining their integrity. In the past conscientious objection has largely been associated with termination of pregnancy; however, the legalization of MAiD has raised another common scenario for conscientious objection. This tension is negotiated by allowing a provider to refuse to provide care as long as they refer the patient to someone else, thereby ensuring ongoing care. Organizations have asserted similar claims to institutional conscientious objection and, while these claims are more controversial, they have generally been accepted within health care systems in Canada.
Conscientious provision is the provision of a legal, clinically appropriate health care service by a health care provider acting within their scope of practice to a consenting patient on grounds of values (ethical, professional, religious, or other) in a setting where providing a service is prohibited by institutional policy or precedent within an organization.
Conscientious provision parallels conscientious objection. It provides protection for individuals who find their deeply held values at odds with the services that they are prohibited from providing in their professional capacities, where they would be acceptable were it not for an organization’s values-based objection to them. If we allow for conscientious objection as a way for providers to maintain their integrity, we should also allow conscientious provision in order to achieve the same objective.
Conscientious provision is also connected to patient interests. It makes it easier for patients to obtain desired and needed health care services in the face of institutional conscientious objection, and meeting patients’ health needs is at the core of health care providers’ professional values and identities.
One of the essential characteristics of fairness is that we treat like situations alike. In order to justify permitting conscientious objection but not conscientious provision, conscientious provision must be relevantly different from conscientious objection. Otherwise, conscientious provision warrants similar recognition in law and policy to conscientious objection. Below I identify some potential differences and demonstrate that they do not distinguish between conscientious provision and conscientious objection.
- Action and inaction: A critic of conscientious provision might point out that conscientious objection involves inaction by a provider, while conscientious provision involves action. But conscientious objection is not focused on an action itself; it is about the significance of an action within a system of values. Conscientious provision similarly addresses what it means for providers when they cannot act in ways that accord with their deeply-held values.
- Logistics: A critic might also point to logistical differences between conscientious provision and conscientious objection. For conscientious provision there is potentially a need to gather material and human resources to support the provision of a treatment or service and there are considerations around organizational liability. However, honoring conscientious objection requires organizational management as well; there is a need to develop policy and process, increased demand on human resources, and potential legal and fiscal repercussions for not providing clinically appropriate care.
- Reputational harm: An organization might experience reputational harm as a result of conscientious provision, and this could in turn affect fundraising and community support. But because organizations could plausibly incur similar reputational or operational harm as the result of conscientious objection, it does not represent a relevant difference.
- Organizational autonomy: Critics might point out that organizations are generally able to terminate employment or rescind privileges of providers who do not comply with organizational policy and guidance, whatever the reason for noncompliance. Conscientious provision might be seen as unfairly limiting an organization’s ability to function. Again, conscientious objection has the same effect. Both conscientious objection and conscientious provision exist to provide some degree of defense from institutional sanction when a provider refuses to act (or not act) in a particular way on the basis of their values.
Conscientious provision and conscientious objection apply equally to any situation where there are values-based reasons for objecting to providing particular health care services or for objecting to a refusal to provide particular health care services. While the argument that conscientious provision should be recognized and protected is spurred by MAiD in Canada, it is equally relevant to termination of pregnancy, therapies for patients who are transgender (including gender affirmation surgeries), withdrawal of potentially life sustaining treatment, and prenatal genetic diagnosis, among others.
Some argue that organizational conscientious objection should be eliminated entirely. Nothing in this argument would weigh against such an approach. As long as organizational conscientious objection is permitted, however, conscientious provision provides a way to meet patient needs and allow providers to practice with integrity. If we respect conscientious objection then fairness requires us to respect conscientious provision.
Dear Doctor Warren,
There are a number of unstated assumptions in your article which deserve further scrutiny.
The fact that euthanasia is legal does not (necessarily) make it ethical. Ethical and legal are two different things. It is, for instance, legal, to pour a drink for an alcoholic (and leave it sitting on the table in front of him, even if he at first refuses the offer), but it is not ethical.
And again, ethical status (in some circumstance) does not (necessarily) make an act “medically” ethical. There are jurisdictions in which capital punishment is carried out by professional executioners (such as in Canada until recently). Of course, the ethics of capital punishment remains an open and disputed question around the world. However, doctors, globally, appear to be of the opinion that “even if” capital punishment were ethical, it is definitely not ethical for doctors to be employed as the agents of delivery. Nevertheless, there are jurisdictions, such as numerous American states, which do exactly that. Should doctors in those states automatically agree with such an ethical judgement ?
Let us, next, consider the grounds you recognize for both conscientious objection and conscientious provision :
In speaking of the first, you begin by mentioning “deeply held values”, which in the post-modern context tends to be read as code for “religious” and therefore heavily freighted with assumptions of irrationality.
Farther down the page, speaking of conscientious provision, you simply speak of “values” which are then qualified in parenthesis as “ethical, professional, religious, or other”. Clearly, if we are speaking of parity between these two actions, we must admit that there may be (and I earnestly assure you that there are in fact) doctors who refuse to perform euthanasia for ethical and (especially) professional (medical) reasons which have no tinge of irrationality.
I cannot touch on the arguments here. But I and others have done so at length elsewhere (World Medical Association Journal, Vol 64, no. 4, December 2018, page 33).
Suffice it to say, once again, that the mere legalization of euthanasia in Canada does NOT magically enshrine the practice as medically ethical. This remains an open medical question around the world (and through the centuries). At the present time, (in opposition to the current Canadian establishment view) the World Medical Association, plus national medical associations in USA, UK, France, and Germany (to name only these), are on the “unethical” side.
One example which I find particularly informative and worthy of emulation is that of Switzerland. The Swiss permit doctor assisted suicide. They have private clinics which provide the service, and these have become so productive that suicidal tourism is an identifiable national industry. However, the Swiss national medical association still defines euthanasia as inconsistent with the central goals of medicine.
There is, therefore, a useful distinction to make between what a country will legally permit, and what it will officially condone. In fact, it is my personal opinion that the aggressive marketing of euthanasia in Canada is merely the result of our monolithic state medical delivery system : Because the legality of euthanasia means that doctors working for the state will perform the procedure, it becomes important for the state to uphold the ethical status of the act. In other words : the Canadian state has a dog in the ethical fight in a way that Switzerland does not.
Now let us look at the rationale for allowing the formation of institutions which do not permit euthanasia :
Only with dedicated institutions of contrasting Euthanistic and Hippocratic natures can the competition of these two visions be honestly and effectively placed before the public, which is to say, before the clientele. Only thus can all be properly served.
Tellingly, whatever public perception may say about “intolerable suffering”, most patients will never consent to euthanasia. To demonstrate this point : In the Netherlands (where we find the world’s highest incidence and longest familiarity with legal euthanasia) only ten percent of terminal cancer patients agree to die in this manner. There is therefore, a serious cognitive dissonance between overwhelming patient desire for other treatment strategies, and the mind set of those doctors who currently believe (according to “deeply held values”) that euthanasia is in fact the “clinically appropriate health care service” for patients in this group.
And then, there is the question of team psychology. Participating doctors and nursing staff that develop a positive esprit de corps around this practice, will have a natural tendency to attempt to normalize its use among specific patient profiles. But unfortunately though (as noted) : ninety percent of patients can be expected to disagree with such doctors on such a treatment plan.
Do these patients then (an overwhelming majority) not have the right (as medical consumers) to be protected from such lethal bias on the part of their caregivers ? Or as one critic stated the case : How is it that I can have the guarantee of a smoke free hotel, but not of a euthanasia free hospital ?
And from the medical point of view : Do the overwhelming majority of doctors (who personally refuse to perform euthanasia, while, perhaps, supporting the decision of colleagues to practice otherwise), not have the right to form dedicated teams in which their own preferred treatment models will be allowed to develop with an undivided dedication ?
In short, there is no reason whatever why every institution in Canada should function in the same manner. Such a North Korean Model is the very antithesis of the free competition of methods which is the life’s blood of scientific medical evolution.
Of course, were there unanimity concerning the medical legitimacy of euthanasia things might appear in a different light, or even, if merely the majority of doctors (and their patients in the identified groups) were attracted to euthanasia as a standard choice.
But neither of these conditions holds : The overwhelming majority of patients and doctors (as opposed to the general public and public administrators) personally avoid euthanasia when given the choice to do so.
And is not choice what this was all about in the first place ?
Gordon Friesen, Montreal