Thursday, February 19, 2015

Professionalism and ethics

The College of Physicians and Surgeons of Ontario (CPSO) has a policy draft out for consultation on Professionalism and Human Rights. Though the policy would directly apply only to physicians the topics raised in the policy are significant for all health care professionals.

The nature and sources of moral – or ethical obligation.

I will use the words "moral" and "ethical" interchangeably, some people wish to maintain a distinction between "moral" as something more within the personal domain, and "ethical" as something more public or social, but as we will see in this piece that distinction won't help us, at the end of the day there is just you, or me, deciding what you or I will do. We have a variety of sources for our moral or ethical commitments. I am a member of a family, and a community, I live in a shared environment, each of these bring moral obligations. I have obligations to my children, my partner, and my extended family and I have those obligations because of my relationships with those people. I have an obligation to my community and environment because I share that space with others. Some would argue that I have ethical obligations to respect the law and some people have moral convictions that stem from their religious beliefs, and – and this is the issue here, many of us have ethical obligations that stem from our roles as professionals. (Of course those preceding couple of sentences could be a book chapter – or indeed the book itself, this is all contested territory, but the point I want is that our moral obligations legitimately come from a variety of sources.) Most of the time that all fits more or less neatly together. We typically choose our relationships, religious beliefs and professions in accordance with our deepest values and we can often juggle the pieces to fit. But not always.


 

An example of conflict

Some years ago, in the aftermath of SARS many health care organizations started to develop pandemic plans. In the context of those plans issues of staffing arose, what would happen if there was a pandemic and health care professionals were fearful for their own safety? I was summonsed, along with the other ethicist working in the area and we were told by a senior hospital administrator that we were to go out and do some education sessions on the "duty to provide care." After my initial reluctance to do what I was told… the next thing was to think about the duty to provide care. Is there such a duty for a health care professional? And of course it's pretty easy to get to the conclusion – yes. But as the sessions progressed it quickly became apparent that that was only part of the story. Is there a duty for a health care professional to provide care – yes. Is there a duty for a parent to look after his or her children – yes. What happens when those two duties collide? (When your day care plans have fallen though because your usual provider is sick and so on.) In this case a professional ethical obligation came into conflict with a personal moral obligation. In this case it is clear what people will do but this realisation interestingly shifts the problem for organizations. The original thought was that the obligation to provide care should be preached – and that this would be enough – in effect the burden would be placed on the shoulders of care providers. But this could not be the solution. Care providers themselves have other, potentially competing moral obligations too. The real problem for health care organizations had to be to work out how to support staff to make it as easy as possible for them to fulfill their health care obligations. That would mean encouraging people to make contingency plans for their other obligations – and supporting those plans where possible, and in providing as safe as possible a work environment. Sometimes our professional obligations can come into conflict with our other obligations – and at that point we have to decide what we – as persons will do.


 

Physicians and the duty to refer.

First, let's lay the groundwork. Medicine is a self-regulated profession. That is, medical practitioners have been given the social right to set their own standards of practice and to ensure that the training, education, and discipline of practitioners meet those standards. In Ontario the authority to ensure that this occurs is granted to the CPSO. The CPSO describes self-regulation as a privilege, and medical professionalism as a social contract, a covenant between the profession and society. (The Practice Guide: Medical Professionalism and College Policies. http://www.cpso.on.ca/uploadedFiles/policies/guides/PracticeGuideExtract_08.pdf ) The CPSO acts, in effect, as the mediator between the medical profession and the broader society which grants physicians their authority to practice. Physicians, practising in Ontario have accepted a professional ethical obligation to practice in accordance with CPSO values and standards.

The draft policy says the following:

156 Where physicians are unwilling to provide certain elements of care due to their moral or religious

157 beliefs, an effective referral to another health care provider must be provided to the patient. An

158 effective referral means a referral made in good faith, to a non-objecting, available, and accessible

159 physician or other health-care provider. The referral must be made in a timely manner to reduce the

160 risk of adverse clinical outcomes. Physicians must not impede access to care for existing patients, or

161 those seeking to become patients.

162

163 The College expects physicians to proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide.

http://policyconsult.cpso.on.ca/wp-content/uploads/2014/12/Draft-Professional-Obligations-and-Human-Rights.pdf

There are almost a thousand comments on this draft policy on the CPSO web site. Most of them objecting. In many cases the argument seems to be that, informing someone that while I do not do this someone else does, is somehow the moral equivalent of performing the deed itself. That does not seem quite right to me. It sounds a bit like suggesting that a librarian is responsible for doing the things described in the books on the library shelves. It is the case that a number of practices, for example, some forms of contraception, assisted reproduction, and abortion, are permitted in Ontario and can only be accessed through the medical profession. While a physician may choose not to offer those services him or her-self competent, ethical members of the same profession, in your jurisdiction, do, and informing your patient of that fact is not the moral equivalent of performing the act yourself.

The CPSO has situated the duty to refer in the context of the profession's commitment to the broader community. That professional commitment then becomes binding on individual physicians. From the social perspective it is easy to see the point. The health care system in Ontario is a system of interlocking pieces. Physicians play a privileged role in that system. Furthermore, access to any part of the system is often controlled by physicians. No physician therefore, should be in a position to impede access to that system. Hence the duty to refer.

Ultimately, it is up to each one of us – physicians or not to decide how we will conduct our moral lives. Our moral obligations do indeed spring from a variety of sources and in the event of conflict we, each of us, must choose what we do. But, how we honestly, and carefully reflect upon and conceptualize our moral obligations and how they do or do not conflict is hugely significant, and may make all the difference.

 

Saturday, February 7, 2015

Supreme Court of Canada Rules on physician assisted death


 

On February the 6th 2015 the Supreme Court of Canada issued its ruling in the Carter Case. The ruling is unanimous and unequivocal.

Section 241 (b) and s. 14  of the Criminal Code  unjustifiably infringe s. 7  of the Charter  and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Section 241 of the Criminal Code prohibits aiding or counselling suicide and Section 14 prohibits consenting to one's own death. Both sections are judged to be void, and the judgment is suspended for one year to allow new legislation. Section 7 of the Charter concerns the right to life and liberty.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Some of the arguments in this case were novel.

It was ruled that the right to life and liberty was breached because the law against assisted suicide had the effect of requiring some people to take their own lives earlier than they would have done if they could have had someone assist them.

Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.

That is, for instance, in the case of someone with a neurological degenerative disease where the person becomes progressively physically incapable, that person would have to commit suicide earlier – while physically capable of doing so, than he or she might choose if assistance was available. This deprives that person of his or her right to life. As has been pointed out elsewhere this is a "right to life" argument used to support physician assisted death.

But there is more:

The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

This is a more conventional version of the argument from autonomy or liberty. But the two arguments are significantly different and would lead to quite different conclusions. For instance, the "forcing some individuals to take their own lives prematurely" argument only applies in those cases where there is a progressive physical degeneration which requires the person to act now because he or she will be physically unable to act later. This would apply only to a very restricted number of cases. (I will come back to those situations where the degeneration or decline is mental rather than physical later.) However, the "right to make decisions concerning bodily integrity" argument leads to far wider conclusions. The judgment rests on the latter argument. The judgment does not speak to issues such as progressive physical deterioration, or terminal illness, nor does it restrict physician assisted death to situations where the person is actively or imminently dying. This decision would grant the right of any competent adult with a "grievous and irremediable medical condition" to seek physician aid in dying. What counts as "grievous"? That is probably in the perception of the person him or herself, where the disease causes "enduring suffering that is intolerable to the individual."

This judgment is momentous, in many respects it settles one part of the debate. It will be very difficult now to argue against physician assisted death in all circumstances. The debate will shift now to the circumstances under which physician assisted death will be permitted. The debate has become not if – but how.

On the "how" question, for many people their greatest fear is not physical degeneration and decline, but rather mental decline. The family of Gillian Bennett (see: deadatnoon.com/ ) argued that their mother was forced to commit suicide sooner than she would otherwise have done in order to avoid mental decline. The "forcing some individuals to take their lives prematurely" would apply to her, but she would not meet the "competence" test at the time that she would wish the death to occur. The issue of advance directives concerning physician assisted death will have to be dealt with at some stage.

There is plenty more to say, the issue of physician and care-provider conscience was raised in the judgment and left open for legislation at either the federal or provincial level.

What do you think?