Fiduciary Duties Limit Physicians’ Freedom of Conscience

Emma Ryman discusses conscientious objections and the physician-patient relationship.

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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.

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Jan Steen, Doctor’s Visit (1661-2)

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.

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Emma Ryman is a philosophy PhD student at Western University.

5 comments

  1. Harry Weisbaum · · Reply

    This issue raises the question of what criteria of moral/religious objection to providing a given service is acceptable ( let alone refusing an “effective referral to a willing physician”).

    If a physician is an “anti-vaxer” is denying vaccines to his patients and refusing an effective referral OK? If the physician is Sunni and considers his/her Shiite patient an infidel not worthy of any medical treatment is that physician OK in denying treatment or effective referral? How about a white supremasist physician and non Caucasian patients? Or a Buddhist physician denying life saving antibiotics because that will kill millions of other living organisms?

    It seems the the CPSO has come up with a moral, balanced, responsible and effective policy to provide “conscientious objectors” with an avenue to deal with their reasonable moral/religious reluctance to provide legal medical services without trashing a patients right to otherwise available services.

  2. Arthur Ryman · · Reply

    Well put. Doctors should not put their personal views ahead of their patient’s health. Residents of Ontario must be able to receive all treatment that is legal in the province.

  3. Rob MacDougall · · Reply

    It doesn’t seem right to say that this is a matter of “putting the patient’s interests” first, because a “conscientious objection” isn’t a claim about what is in the physician’s interest, but rather a claim about the physician’s duty. In fact, that the physician understand the denial to be a matter of duty is the only thing that makes a conscientious objection “conscientious” in the first place. Moreover, if a physician really believes that it is his or her duty not to perform such a procedure, then he or she cannot possibly concede that it is in the patient’s “interest” to have the procedure, because patients can’t have a legitimate interest in obtaining something that would cause others to behave immorally. The mere fact that someone wants something, it seems, does not guarantee that it is definitely in their interest, or at least, their legitimate interest, to have it.

    1. Emma Ryman · ·

      Hi Rob,
      Thank you for your comments. I hope that I might be able to answer some of your concerns.

      When it comes to physicians’ duties, most would agree that physicians have duties to provide patients with medically necessary services. Abortion, for example, is publicly funded in Ontario under OHIP, which means that the government has determined that the procedure is medically necessary. As such, there is at least a pro tanto obligation for physicians in Ontario to provide abortions. While I agree with you that the mere fact that someone wants something does not guarantee that it is in their legitimate interest to have it, the fact that the Ontario government has deemed abortions to be medically necessary physician services gives support to the thought that patients in Ontario can have legitimate interests in having abortions.

      One way you can perhaps frame the debate around conscientious objection, then, is as a conflict of duties – duties to provide medically necessary services to patients versus duties to act in accordance with one’s moral or religious beliefs. My suggestion, using the language of duties, is that duties to provide medically necessary services to patients ought to outweigh duties to act in accordance with one’s personal moral or religious beliefs.

      You also claim that “if a physician really believes that it is his or her duty not to perform such a procedure, then he or she cannot possibly concede that it is in the patient’s “interest” to have the procedure, because patients can’t have a legitimate interest in obtaining something that would cause others to behave immorally”. I think this is a difficult position to hold. Even if many physicians sincerely and strongly believe that abortions are impermissible, they likely also recognize that not all citizens partake in their particular belief systems – indeed, given the current laws surrounding abortion in Canada, it seems clear that Canadian society has endorsed a belief system that includes the moral permissibility of abortion. It is not the personal moral or religious belief systems of individual physicians that determine what gets to count as being in patients’ interests, but the values of the profession as a whole.

  4. Jacquelyn Shaw · · Reply

    I , too, welcome the new CPSO draft policy and I agree with the author that providing referrals is the right approach. Historically, when someone wanted to conscientiously object (e.g. to required military service), they had to perform alternative, non-military services (e.g., mining, or medical volunteer work), or be subject to a penalty (eg imprisonment). I believe alternative service is still the requirement in the military of today–why should medicine be any different? While it is understandable that some physicians may have and act upon their strong feelings not to provide a particular service, it seems only reasonable that they offer an acceptable alternative service (i.e. a referral) in its place. This allows our publicly funded healthcare system, into which we all pay, to continue to meet its patient care goals. If some will not even agree to offer the meagre alternative service of a referral, then this seems a dereliction of physicians’ duty to both patients and to the sustainable functioning of our healthcare system, and should be treated as such.

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