Emma Ryman discusses conscientious objections and the physician-patient relationship.
The College of Physicians and Surgeons of Ontario has recently released a draft policy on “Professional Obligations and Human Rights.” One of the goals of this policy is to clarify the College’s position on physician conscientious objections, which are objections some physicians have to providing certain medical services on moral or religious grounds. More specifically, the policy is intended to clarify what a physician who has a conscientious objection to a medical service may or may not do when faced with a request for such a service.
Margaret Somerville’s response to this draft policy has stirred up a great deal of controversy over the College’s requirements for conscientious objectors. She rails against the Ontario College of Physicians and Surgeon’s alleged intention to force Ontario physicians who have conscientious objections to procedures like abortions out of the profession. Unfortunately, Sommerville’s piece is as inflammatory as it is misinformed. Somerville’s concerns seem to stem from a quote she attributes to spokesperson Dr. Marc Gabel, in which he allegedly states that, “physicians unwilling to provide or facilitate abortion for reasons of conscience should not be family physicians.” However, the College has written a letter to the National Post explaining that Dr. Gabel has never made such a claim and requesting a correction.
Most of Somerville’s piece is spent arguing against this imagined policy change, and criticizing so-called progressive “crusaders” who “seek out physicians with conscientious objections and demand treatment they know they will refuse” (a category of people that is also surely imaginary). However, she does raise an important question – what are the appropriate limits on physicians’ freedom of conscience? Although the College’s new policy does not intend to eliminate physicians’ freedom to conscientiously object to providing certain medical services, it does include a requirement for physicians to provide effective referrals in such cases. This requirement will mean, for example, that a physician unwilling to perform an abortion for moral or religious reasons will have to provide the patient seeking the service with an effective referral to a willing physician.
Many, myself included, will laud this change as a welcome protection for patients, especially those living in remote or under-served communities. Yet, some may worry that such a requirement will still amount to forcing objecting physicians to violate their consciences. If a physician thinks abortion is morally prohibited, then facilitating an abortion by giving an effective referral may still feel like a moral transgression. How, then, should we resolve this conflict? Whose interests should take priority – the physician’s or the patient’s?
To answer this question, it is useful to consider the nature of the physician-patient relationship. Canadian courts characterize the relationship between physicians and patients a fiduciary relationship. Norberg v. Wynrib defines a fiduciary relationship as a relationship in which “one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other.” The physician-patient relationship is understood as a fiduciary one because sick patients entrust physicians with significant discretionary power over their health and well-being. Due to this entrustment, physicians owe their patients what Norberg v. Wynrib refers to as the “classic duties associated with a fiduciary relationship,” which are “loyalty, good faith, and avoidance of conflict of duty and self‑interest.”
So, what can recognizing the fiduciary nature of the physician-patient relationship tell us about the conflict over freedom of conscience? I argue that recognizing the fiduciary duties physicians have to patients helps us understand whose interests ought to take priority – namely, the patient’s. Of course, I am not suggesting that as fiduciaries, physicians cannot give any weight to their own interests, nor am I suggesting that they must perform services to which they object. For one thing, it is likely that receiving an abortion from an objecting physician would not actually be in a patient’s best interests. Rather, I am suggesting that a physician, as a fiduciary, must first and foremost consider what course of action is in the best interests of the patient. Any concern for how that course of action may affect him or herself ought to be a secondary consideration. That is why the College’s proposed policy of requiring effective referrals strikes the right balance. It gives some weight to respecting physicians’ moral or religious beliefs insofar as it does not force them to perform procedures to which they conscientiously object, but it gives more weight to ensuring that patients’ medical needs will be adequately met. Although such a policy may ultimately lead objecting physicians to partially compromise their freedom of conscience, this is a sacrifice that physicians, as trustees of patients’ welfare, should be willing to make.
Emma Ryman is a philosophy PhD student at Western University.