12 June, 2015 NUMBER 135/15

COLLEGE OF PHYSICIANS AND SURGEONS

OF SASKATCHEWAN

TO COUNCIL

FROM: Registrar SUBJECT: Conscientious Objection Committee Redraft

For Your Decision

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M E M O R A N D U M

DATE: June 12, 2015 TO: Council FROM: Bryan E. Salte RE: Draft Policy Conscientious Objection

1. Decision Required

At the March meeting Council asked the committee to reconsider aspects of the draft

policy and to suggest changes to the policy. Council agreed that at the June meeting it

would approve a draft policy in principle and once again engage in a consultation process

to obtain input from physicians and the public. Council will then approve a final policy in

September after considering the response to the final consultation.

2. Council direction in relation to the draft considered at the March meeting (Info 73_15)

As I understand the direction of the Council from the March meeting, it was the

following:

1) There will be a policy approved by Council. Council approved the general

approach of the document from Info. 73_15;

2) The reference to Code of Ethics in the draft should be changed to Canadian

Medical Association Code of Ethics or CMA Code of Ethics

3) The 7th bullet in the draft states that Reasonable limits on a physicians ability to

refuse to provide care are appropriate unless there is a good legal reason that the

patients interests should not be accommodated, that should be changed so that it

refers to a legitimate clinical reason in addition to referring to a good legal

reason

4) The order of the paragraphs under Scope should be reversed so that it first states

that the policy does not refer to physician assisted death and then contains the

second paragraph that it refers to all medical services.

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5) The obligation to provide information to patients should be clarified to state that it

is an obligation to provide full and balanced information.

6) The policy should contain a statement similar to the Ontario document that The

College expects physicians to proactively maintain an effective referral plan for

the frequently requested services they are unwilling to provide.

7) In section 5.4 the policy should, in addition to stating that a physician has an

obligation to provide care in an emergency, state that a physician has an

obligation to provide care when a referral to another health care provider is not

possible without causing a delay that would jeopardize the patients health or

well-being.

8) The policy should contain a statement similar to the Ontario document that

Physicians must provide care in an emergency, where it is necessary to prevent

imminent harm, even where that care conflicts with their conscience or religious

beliefs.

9) The obligation to refer a patient should be an obligation to make a timely and

effective referral.

10) The final paragraph of the document needs reworking to refer to decisions not to

treat based upon clinical judgment rather than decisions not to refer based upon

clinical judgment.

11) The document should include a flowchart to explain the process that a physician

should follow if the physician has a conscientious objection to a medical service

that the patient is considering.

3. Committee meetings

The Committee met on May 25 and June 12. The persons in attendance or both meetings

were:

Dr. Karen Shaw Dr. Anne Doig Dr. Preston Smith Dr. Susan Hayton Ms. Susan Halland Mr. Marcel de la Gorgendiere

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Mr. Bryan Salte

Dr. Brian Geller was at the May 25 meeting but was unable to attend the June 12

meeting.

4. Committee discussion at the May 25 meeting

There was general agreement on the following:

1) It is appropriate to separate the issue of providing information to patients about a

particular service from the issue of providing that service. The nature of the

conscientious objection may be different in the two situations. Physicians who

have a conscientious objection to some forms of medical care will not have a

conscientious objection to other forms of care. Some physicians may object to

providing information about some forms of treatment but be willing to provide

information about other forms of treatment. Some physicians may be willing to

provide information about some forms of treatment but not willing to assist a

patient if a patient makes a choice to obtain that treatment.

2) The flow diagram reviewed at the May 25 meeting generally appropriately

described the options for and obligations of a physician who has a conscientious

objection to a particular form of treatment being considered by a patient.

However, as outlined below, the content of that flowchart may have to be

modified if the final document determines that a physicians obligation is to

arrange to transfer care, rather than being an obligation to take steps to ensure that

the patient receives information.

3) If a physician provides information to a patient in relation to a particular

treatment, the information must be adequate to allow the patient to make an

informed choice whether to seek that treatment.

4) If a physician has a conscientious objection to providing information to a patient

in relation to a particular treatment, that physician has an ethical obligation to take

all reasonable steps to ensure that the patient is able to obtain that information

from another reliable source. That should include the opportunity for the patient

to seek additional information about the proposed treatment, and the opportunity

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for the patient to ask questions about the proposed treatment and receive

appropriate information about the proposed treatment if the patient wishes.

5) What will be required to meet the obligation to provide information to a patient in

a specific fact situation may vary depending on the nature of the treatment under

consideration and the particular situation of the patient.

6) If a physician provides information to a patient about a proposed treatment, and if

the patient decides to obtain the treatment, the physician has an obligation to take

steps to ensure that the patient is able to access the service without unreasonable

delay and without unreasonable barriers.

7) The general viewpoint expressed was that the word refer is one which has a

specific meaning to physicians and should be avoided if possible. Not everyone

agreed that the word refer was inappropriate but alternative wording was not

strongly opposed if the effect of the alternative was to clearly express the

Colleges expectations for physicians.

There wasnt general agreement on the following:

1) What are the expected arrangements for a physician who has a conscientious

objection against providing information to patients about a possible treatment?

Must the arrangement be with another health care provider? If it must be to

another physician or other health care provider is it necessary for the physician to

specifically arrange with that person to see the patient and obtain that persons

agreement to do so? Is it acceptable to make an arrangement with some other

source of information such as an agency?

2) What are the expectations of a physician who has provided information to a

patient if the patient chooses a treatment to which the physician has a

conscientious objection? Must the physician provide the patient with contact

information for another health care provider who can facilitate the treatment?

Must the physician contact a health care provider who can facilitate the treatment

and make arrangements for the patient to be seen by that health care provider?

Can the obligation be met by providing the patient with information about an

agency that can arrange for the treatment?

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One point of view expressed was that it is sufficient to provide the patient with

contact information so that the patient can make the necessary arrangements to

access the health service.

The other point of view expressed was that physicians who recognize that they

will not be able to provide full and balanced information about a particular service

or procedure, or are unwilling to directly facilitate patient access to a particular

service or procedure because of a conscientious objection, must arrange for a

Saskatchewan health practitioner to provide care in these areas should such an

eventuality arise. In the situation where transfer of care to a Saskatchewan health

practitioner is not possible, the physician must demonstrate why such transfer is

not possible and what alternative methods of provision of information/access to

services will be provided in lieu of such transfer.

Additionally, there was concern expressed that paragraph 5.4 was capable of being read

in a way that it requires a physician to provide treatment to a patient if it would be

inconvenient to the patient to seek treatment elsewhere, not only in a situation where

delay could have a significant impact on patient health.

There were two competing viewpoints in relation to paragraph 5.4. The first was that the

paragraph should be limited to what have generally been regarded as true emergencies

where the patients health is in immediate danger.

The other viewpoint was that the document should address both emergency situations and

situations where the patient wants a particular type of care that needs urgent access to

information and a provider the statement in the policy should focus on the patient and

that individuals choice at the time of initial consultation. It is not appropriate to define

the obligation in terms of avoiding harm to the patients health or well-being. If defined

as avoiding harm to the patients health or well-being, it will, for example, allow a

physician opposed to abortion to refuse to arrange for the morning after pill on the basis

that the physicians believes that he/she is preventing harm by allowing the patients

pregnancy to continue to term. Such a physician may argue that he/she has taken action

that will benefit the fetus and ultimately benefit the mothers psychological well being.

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5. Redraft for Councils consideration

Council will note that there are three areas of the document on which the committee

could not reach consensus. There were also a couple of areas in which the committee

identified a need for clearer drafting.

The areas in red font are those which are either new following the meeting of May 25 or

which require a Council decision. In the three areas of the policy which set out two

options for the policy, Council will need to choose between the two options discussed by

the Committee or, if thinks that a different option should be considered, to develop a

different option.

The comments in blue Arial font related to some of the changes made from the draft

considered by the committee on May 25 and some of the reasons expressed by

Committee members to support the first or second option presented in the document.

6. Redrafted Policy with comments

POLICY - CONSCIENTIOUS OBJECTION

This document is a policy of the College of Physicians and Surgeons of Saskatchewan and reflects the position of the College. 1. Purpose This policy seeks to provide clear guidance to physicians and the public about the obligations which physicians have to provide care to patients and how to balance those obligations with physicians right to act in accordance with their conscience if they conflict. This policy is based upon the following principles relating to the physician-patient relationship

The fiduciary relationship between a physician and a patient;

Patient autonomy;

A patients right to continuity of care, especially as recognized in the Canadian

Medical Association Code of Ethics, which states Having accepted professional

responsibility for a patient, continue to provide services until they are no longer

required or wanted, until another suitable physician has assumed responsibility for

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the patient, or until the patient has been given adequate notice that you intend to

terminate the relationship.

A patients right to information about their care, especially as recognized in the

CMA Code of Ethics which states Provide your patients with the information

they need to make informed decisions about their medical care, and answer their

questions to the best of your ability and Make every reasonable effort to

communicate with your patients in such a way that information exchanged is

understood.

Patients should not be disadvantaged or left without appropriate care due to the

personal beliefs of their physicians;

Physicians should not intentionally or unintentionally create barriers to patient

care;

The College has a responsibility to impose reasonable limits on a physicians

ability to refuse to provide care where those limits are appropriate. There are

some circumstances in which there is a legitimate clinical reason or other good

legal reason that the patients interests should not be accommodated;

Comment: the previous draft section was somewhat convoluted. The committee felt that this paragraph needed to be redrafted

Medical care should be equitably available to patients whatever the patients

situation, to the extent that can be achieved.

2. Scope This policy does not apply to physician-assisted death or physicians conscientious objection related to a potential physician-assisted death. The College recognizes that this is currently an issue which is in a state of development and may be revisited by the College at a later time. This policy applies to all other situations in which physicians are providing, or holding themselves out to be providing, health services. 3. Definitions Freedom of conscience: for purposes of this policy is actions or thoughts that reflect ones deeply held and considered moral or religious beliefs.

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Comment: there was some discussion whether the reference to moral or religious beliefs being the basis for freedom of conscience, and whether the concept should also include ethical or spiritual beliefs. However, there was no strong opposition to this definition.

4. Principles The College of Physicians and Surgeons has an obligation to serve and protect the public interest. The Canadian medical profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services. Physicians have an obligation not to interfere with or obstruct a patients right to access legally permissible and publicly-funded health services. Physicians have an obligation to provide full and balanced health information, referrals, and health services to their patients in a non-discriminatory fashion. Physicians have an obligation not to abandon their patients. In certain circumstances a physician will have a legitimate clinical reason to refuse to provide a service requested by a patient. Physicians freedom of conscience should be respected. Physicians exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.

Comment: the previous draft referenced existing patients or those seeking to become patients. The use of the words seeking to become patients was the subject of some opposition. The committee agreed that a description of the expectation did not require a reference to those seeking to become patients.

Physicians exercise of freedom of conscience to limit the services that they provide to patients should be done in a manner that respects patient dignity, facilitates access to care and protects patient safety. It is recognized that these obligations and freedoms can come into conflict. This policy establishes what the College expects physicians to do in the face of such conflict. 5. Obligations 5.1 Taking on new patients

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It is important to provide medical care in a way that is consistent with The Saskatchewan Human Rights Code and the CMA Code of Ethics. The College document Patient-Physician Relationships addresses the expectations of physicians who are considering taking on a new patient.

The Canadian Medical Association Code of Ethics says:

17. In providing medical service, do not discriminate against any patient on such grounds as age, gender, married status, medical condition, national or ethnic origin, physical or mental disability, political affiliation, race, religion, sexual orientation, or socioeconomic status. This does not abrogate the physicians right to refuse to accept patients for legitimate reasons.

The above obligation does not prevent physicians from making bona fide decisions, or exercising professional judgment, in relation to their own clinical competence. Physicians are always expected to practice medicine in keeping with their level of clinical competence to ensure that they safely deliver quality health care. If physicians genuinely feel on grounds of lack of clinical competence that they cannot accept someone as a patient because they cannot appropriately meet that persons health care needs, then they should not do so and should explain to the person why they cannot do so. The duty of a physician not to refuse to accept a patient based on the identified characteristics does not prevent physicians from making bona fide decisions to develop a non-discriminatory focused practice. Where physicians know in advance that they will not provide specific services, but will only arrange for the patient to obtain the necessary information from another source or arrange for the patient to obtain access to a medical treatment from another source (in accordance with paragraphs 5.2 or 5.3), they must communicate this fact as early as possible and preferably in advance of the first appointment with an individual who wants to become their patient. The College expects physicians to proactively maintain an effective plan to meet the requirements of paragraphs 5.2 and 5.3 for the frequently requested services they are unwilling to provide. 5.2 Providing information to patients Physicians must provide their patients with full and balanced health information required to make legally valid, informed choices about medical treatment (e.g., diagnosis, prognosis, and clinically appropriate treatment options, including the option of no treatment or treatment other than that recommended by the physician), even if the provision of such information conflicts with the physicians deeply held and considered moral or religious beliefs.

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The first option: The obligation to inform patients may be met by arranging for the patient to obtain the full and balanced health information required to make a legally valid, informed choice about medical treatment from another source, provided that arrangement is made in a timely fashion and the patient is able to obtain the information without undue delay. That obligation will generally be met by arranging for the patient to meet and discuss the choices of medical treatment with another physician or health care provider who is available and accessible and who can meet these requirements. The physician has the obligation to ensure that an arrangement which does not involve the patient meeting and discussing choices of medical treatment with another physician or health care provider is effective in providing the information required by this paragraph. The second option: If a physician recognizes that the physician will not be able to provide full and balanced information, or is unwilling by reason of the physicians exercise of freedom of conscience to provide that information, the physician must arrange for the patient to meet and discuss the choices of medical treatment with another physician or health care provider who is available and accessible and who can meet these requirements. If the patient does not wish to meet another physician or health care provider to discuss the choices of medical treatment, the obligation may be met by arranging for the patient to obtain the full and balanced health information required to make a legally valid, informed choice about medical treatment from another source.

Comment: those who supported the first option felt that it provided better options as the best option, or the option preferred by the patient, may not involve the patient seeing another physician or another health care provider. Comment: those who supported the first option felt that it was less coercive than the second option and dealt more appropriately with physician concerns that they should not be complicit in facilitating a treatment to which they objected. Comment: those who supported the second option felt that the first was too subjective and might well not be as effective as an in person discussion with another health care practitioner, particularly if the patient was particularly vulnerable. Comment: those who supported the second option felt that the first option would be more difficult to enforce than the first.

Physicians must not provide false, misleading, intentionally confusing, coercive, or materially incomplete information to their patients.

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All information must be communicated by the physician in a way that is likely to be understood by the patient. While informing a patient, physicians must not communicate or otherwise behave in a manner that is demeaning to the patient or to the patients beliefs, lifestyle, choices, or values. Physicians must not promote their own moral or religious beliefs when interacting with a patient. 5.3 Providing or arranging access to health services The first option: Physicians can decline to provide legally permissible and publicly-funded health services if providing those services violates their freedom of conscience. However, in such situations, they must:

a) make an arrangement for the patient to obtain the full and balanced health information required to make a legally valid, informed choice about medical treatment as outlined in paragraph 5.2; and,

b) make an arrangement that will allow the patient to obtain access to the health service if the patient chooses.

Those obligations will generally be met by arranging for the patient to meet with another physician or other health care provider who is available and accessible and who can either provide the health service or refer that patient to another physician or health care provider who can provide the health service. If it is not possible to meet the obligations of paragraphs a) or b), the physician must demonstrate why that is not possible and what alternative methods to attempt to meet those obligations will be provided. The second option: Physicians can decline to provide legally permissible and publicly-funded health services if providing those services violates their freedom of conscience. However, in such situations, they must:

a) make an arrangement for the patient to obtain the full and balanced health

information required to make a legally valid, informed choice about medical treatment as outlined in paragraph 5.2; and,

b) arrange to transfer care to another physician or health care provider who is available and accessible and who can meet these requirements.

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If transfer of care to another physician or health care provider as required by paragraph b) is not possible, the physician must demonstrate why such transfer is not possible and what alternative methods of provision of information/access to services will be provided in lieu of such transfer.

Comment: the preferences for one of the two versions mirrored the discussion in relation to providing information (discussed above). It would seem logical that Council would choose either the first option in both 5.2 and 5.3 or the second option in both places. Those who supported the first option felt that it provided better options as the best option, or the option preferred by the patient, may not involve the patient seeing another physician or another health care provider. Comment: those who supported the first option felt that it was less coercive than the second option and dealt more appropriately with physician concerns that they should not be complicit in facilitating a treatment to which they objected. Comment: those who supported the second option felt that the first was too subjective and might well not be as effective in permitting the patient to access the desired treatment, particularly if the patient is particularly vulnerable.

Comment: those who supported the second option felt that the first option would be more difficult to enforce than the second.

This obligation does not prevent physicians from refusing to arrange for the patient to obtain access to the health service based upon the physicians clinical judgment that the health service would not be clinically appropriate for the patient. If the physician refuses to arrange for the patient to obtain access to a health service based upon the physicians clinical judgment, the physician should provide the patient with a full explanation for the reason not to do so. While discussing a referral with a patient, physicians must not communicate, or otherwise behave in a manner that is demeaning to the patient or to the patients beliefs, lifestyle, choices, or values. When physicians decline to provide a health service for reasons having to do with their moral or religious beliefs, they must continue to care for the patient until the new health care provider assumes care of that patient.

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5.4 Necessary treatments to prevent harm to patients The first option: Physicians must provide medical treatment for a patient if treatment is necessary to avoid harming the patients health or well-being. Accordingly:

a) Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even if providing that treatment conflicts with their conscience or religious beliefs.

b) When it is not possible to arrange for another physician or health care provider to

provide a necessary treatment without causing a delay that would jeopardize the patients health or well-being, physicians must provide the necessary treatment even if providing that treatment conflicts with their conscience or religious beliefs.

The second option: 5.4 Necessary treatments to prevent harm or provide care to patients Physicians must provide medical treatment for a patient if treatment is necessary to avoid harming the patients health or well-being. Accordingly:

a) Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even if providing that treatment conflicts with their conscience or religious beliefs.

b) When it is not possible to arrange for another physician or health care provider to

provide a necessary treatment without causing a delay that would jeopardize the patients health or well-being, physicians must provide the necessary treatment even if providing that treatment conflicts with their conscience or religious beliefs.

Physicians must provide medical treatment for a patient within the physicians competency where the patients chosen medical treatment must be provided within a limited time to be effective and it is not reasonably possible to arrange for another physician or health care provider to provide that treatment.

Comment: the first three paragraphs in these two versions are identical. The title of the second option is different and a fourth paragraph has been added to the second option. Those opposed to the second option felt that it is coercive and not an appropriate balance between a physicians right to refuse to provide treatment to which the physician has a conscientious objection and the

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right of the patient as this paragraph does not contemplate immediate harm to the patient. Those opposed to the second option felt that the situation would very seldom arise and it should not be necessary to include such a controversial statement in a policy when it is unlikely to occur with any frequency. Those in favour of the second option felt that it is important as physicians who might find themselves in such a situation will make appropriate arrangements to avoid finding themselves in such a situation, such as by being proactive to ensure that another physician will be available if the need arises. Those in favour of the second option felt that it is important as, although it is likely to seldom arise, it could have significant impact on a patient if a patient was unable to obtain a treatment that had to be implemented within a short time frame.

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Physician is willing to provide full and balanced information to the patient

Physician is not willing to provide full and balanced information to the patient

Physician provides the information to the patient

Physician ensures that patient is able to access the information in a timely and effective fashion with a Saskatchewan healthcare practitioner

Patient chooses a medical service to which the physician does not have a conscientious objection

Patient chooses a medical service to which the physician has a conscientious objection

Ongoing care to patient

Physician contacts another healthcare provider who is willing to arrange or perform timely and effective access to medical service and makes arrangements for the patient to be seen by that health service provider

Physician provides patient with information to allow the patient to arrange timely and effective access to the medical service

Patient presents with a medical condition which may result in the physician having a conscientious objection

OR