Submission to the College of Physicians and Surgeons of Ontario's Policy on Conscientious Objection

In Spring 2021, the College of Physicians and Surgeons of Ontario (CPSO) requested feedback on its policy on conscientious objection. Here's what we had to say:

The following questions will ask you about some issues related to physicians limiting the health care services they provide.

When physicians limit the health care services they provide because they are outside of their clinical competences, they have obligations to potential or existing patients to ensure they are not abandoned. Please indicate the extent to which you agree or disagree with the following:

  1. Physicians MUST inform potential or existing patients of limitations to health care services offered for reasons of clinical competence as soon as is reasonable. Strongly Agree
  2. Physicians MUST communicate in a clear and straightforward manner to ensure potential and existing patients that their decision is based on an actual lack of clinical competence rather than discriminatory bias and prejudice. Strongly Agree
  3. Physicians MUST provide a referral to another appropriate health care provider for the elements of care the physician is unable to manage directly Strongly Agree
     

Additional comments:

Stigma around abortion plays a critical role in the marginalization of abortion care, and this stigma can manifest in many ways in medical settings. Abortion stigma can be the reason why institutions and health care providers decline to provide abortion services for a variety of reasons including because they don’t wish to be seen offering that service or because no professional development is easily available.

One of the ways in which the people we support have experienced the consequences of that stigma is the lack of knowledge and competence around the provision of abortion care despite how common this medical procedure is, with one in three people who can get pregnant getting an abortion in their lifetime. In the face of historical gaps in access to abortion where abortion care is primarily available in large urban centers less than 150km from the southern border leaving swaths of people far away from services, it is necessary that when opportunities arise to expand access, that it is seen as a responsibility of the medical community to leverage them. The development of certain competences should be sought out, such as the ability to provide medication abortion care which is a practice that can be integrated in all primary care, IUD and/or contraceptive implant insertion or trans-affirming health care considering the jarring statistics found in the 2020 Trans Pulse Canada report that relayed that 45% of trans and non-binary respondents experienced having one or more unmet health care need within the past year compared to 4% of the general population.

Where gaps in access to health care exist and especially in the case of stigmatized or marginalized types of health care, the development of clinical competence is something that should be encouraged by professional colleges. The lack of clinical competence should not be seen as the end of the road and physicians and colleges should take positive steps to ensure access to a comprehensive package of sexual and reproductive health services. Action Canada recommends the addition of an obligation around the responsibility to seek out and expand clinical competences, where possible, to ensure patients receive the care they seek and are entitled to. This is particularly important in cases where not doing so exposes communities to delays and undue hardships. For example, in cases where there are limited options for effective referrals such as rural and remote communities or where patients are more comfortable seeking care from primary health care providers, rather than specialists (due to wait times) or in hospital settings. The staff of our Access Line, our 7-days-a-week phone line (for those seeking support around sexual health and reproductive health), are continuously supporting callers on how to advocate with their primary health care providers to get informed on how to provide medication abortion. The onus should be on health care providers to do this health promotion work.

 

When physicians limit the health care services they provide because they have a conscientious or religious objection, their right to do so must be balanced with the rights of potential or existing patients to access care. Courts have indicated that the interests of the patients prevail when an irreconcilable conflict arises between a physician’s interest and a patient’s interest.

If a physician has a conscientious or religious objection, they must:

  1. Limit the health care services they provide in a manner that respects patients’ dignity, ensures access to care and protect patient’s safety. Strongly Agree
  2. Communicate their objection directly and with sensitivity to potential or existing patients and inform them that their objection is due to personal and not clinical reasons. Strongly Agree
  3. Provide information about all clinical options that may be available or appropriate to meet patient’s needs or concerns Strongly Agree
  4. Provide the patient with an effective referral (taking positive action to ensure the patient is connected to a non-objecting, available and accessible physician, other health care professional or agency), in a timely manner Strongly Agree
  5. Proactively maintains an effective referral plan for the frequently requested services to which they are objecting Strongly Agree
  6. Provide care in an emergency where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs Strongly Agree

Additional comments:

Limiting individuals’ right to access health services, including sexual and reproductive health information and services, on moral or religious grounds without a timely accessible and available referral, represents violations of the International Covenant on Economic, Social and Cultural Rights and International Convention on the Elimination of Discrimination Against Women, as well as the work of the Special Rapporteur on the Right to Health, among other international human rights bodies and mechanisms.

The international human rights framework recognizes sexual and reproductive health as a component of the right to health. Despite that, sexual and reproductive health services are among the services that physicians are most frequently unwilling to provide. Therefore, the obligations to ensure sexual and reproductive health services are accessible, available, acceptable and of quality, accompanied by accessible, transparent and effective mechanisms of monitoring and accountability, apply. The College has an obligation, to regularly track and monitor the extent to which physicians are exercising conscientious objection and for what reasons in order to develop effective responses. A proactive response from the College should include strategies to respond to trends in refusal to provide services, such as initiatives to train sufficient health care providers to provide services most frequently objected to, ensuring appointments could be made possible via telemedicine where possible for communities where providers are scarce and to ensure there are pathways to services that are well-known by members.

Physicians must be held accountable to making specific arrangements with a healthcare provider that will regularly accept patients being referred for the services and provide such information directly to patients who are being referred. For example, in cases where patients are seeking abortion care, attention should be given to ensure that no referral is made that lead patients to anti-choice organizations or to agencies that do not refer patients to abortion care providers. How ‘effective’ a referral is must be demonstrated by physicians and feedback from patients should be sought as a part of an effective monitoring process.

Attention must also be given to patients who may experience stigma and/or discrimination in the context of the referral plan. For example, in communities where there is limited access to health care providers generally, patients seeking certain services may be unable to access a service provider willing to provide the service in their own communities and therefore have to travel outside the community, which is a particular barrier for young people or those with limited access to financial resources. In cases where physicians have refused to provide abortion care and patients find themselves without available care in their vicinity, Action Canada provides financial assistance to individuals who then need to travel as a result. This financial assistance is funded through donations of individuals to a charitable organization. It is unacceptable that a charity must fundraise from individuals in order to maintain a fund to provide access to care that individuals in Ontario are entitled to receive, free of charge.

The requirement that referrals be made in a timely manner is particularly relevant in the context of patients seeking abortion services, given the time sensitive nature of the procedure. Most abortions are performed within the first twelve weeks of pregnancy. However, for patients seeking services after this period, there are fewer physicians who are trained to provide abortion services after 12 weeks. In such cases, those seeking abortion services must often travel long distances, and incur significant expenses to even consider accessing the service. This creates barriers to patients’ ability to access timely abortion services. There are therefore existing significant barriers to access, prior to considering cases where physicians may be unwilling to provide such services. It has been widely reported that where barriers to abortion services exist, including access to timely care, those experiencing unwanted pregnancy either delay seeking services or resort to unsafe or clandestine abortion. This can often result in negative health outcomes. Recognizing such barriers, Action Canada recommends requiring unwilling or clinically incompetent service providers to ensure that the referral provided is truly effective or, in the absence of an effective referral, unwilling physicians provide the service.  This is also why monitoring the use of conscientious objection is important to ensure delays in access to care are identified.

Furthermore, Action Canada recommends that the College adds an obligation for physicians to report their objection to the College as well as colleagues and institution where appropriate. In doing so, the College must track and monitor trends in physician refusal to provide care and for which services in order to develop effective strategies in response – whether through policy reform, professional development, or other mechanisms that ensure patients receive the care they are entitled do.

Action Canada also feels strongly that it must be clearly stated that physicians must not in any circumstances provide patients with information or treatment options that are not evidence-based, a necessity considering the emergence of networks of physicians and organizations promoting the “abortion pill reversal” regimen.

The College must ensure that it is clearly communicated to members that a referral to agencies that promote the abortion pill reversal or offering such treatment does not constitute an ‘effective referral’ and put patients in harm’s way. Health care regulators, such as the college, are obligated under international human rights law to ensure physicians do not practice ‘abortion pill reversal,’ refer to physicians practicing ‘abortion pill reversal’ or refer to inaccurate, non-scientific sources of information (for example, Crisis Pregnancy Centres).

If a physician has a conscientious or religious objection, they must not:

  1. Express personal moral judgment about the beliefs, lifestyle, identity or characteristics of potential or existing patients. This includes not refusing or delaying treatment because the physician believes the patient’s own actions contributed to their condition. Strongly Agree
  2. Promote their own religious beliefs when interacting with potential or existing patients, nor attempts to convert them Strongly Agree
  3. Withhold information about of any procedure or treatment because it conflicts with their conscience or religious beliefs Strongly Agree
  4. Expose clients to adverse clinical outcomes due to delayed referral Strongly Agree
  5. Impede access to care for potential or existing patients Strongly Agree

Additional comments:

Action Canada recommends that the policy clearly states that, in addition to ‘withholding information about any procedures or treatment because it conflicts with their conscience or religious beliefs’, the College also addresses the sharing of misinformation and myths about abortion, including but not limited to false information on risks of complications, the procedure itself, the risk of cancer or, the impacts of abortion on mental health or fertility. It must also address the sharing of information related to and practicing of non-evidence-based practices such as the ‘abortion pill reversal.’

In that vein, the College should include clear guidelines around how to speak about abortion in affirming and non-stigmatizing ways as well as the most up to date evidence and information on abortion care that directly addresses abortion myths to establish standards in regard to what constitutes sharing misinformation and misleading information. This information must be accompanied by information regarding access points across the province.

Which positive actions should physicians take to ensure the patient is connected to a non-objecting, available and accessible physician, other health care professional or agency? 

Steps that we consider acceptable: 3-4-5 and 6

Additional comments: Action Canada recommends that close monitoring of referrals is done to ensure they truly are effective and do not place patients in harm’s way.

Does your assessment of what is acceptable change depending on patient’s circumstances? (vulnerable or not) 

Barriers to abortion access most drastically affect marginalized people, especially those who are low-income, people of color, immigrants or refugees, undocumented people, and those who do not speak English or French. Specifically, there is a strong link between high levels of poverty and low access to sexual and reproductive healthcare. People who can’t afford contraception are more likely to require abortion care and people who live in Indigenous, remote and rural communities are less likely to have an abortion provider nearby. This policy and the standards it set should center the needs and challenges of the most vulnerable as a default. Any barriers to abortion care, reproductive health care, gender-affirming care and sexual health care affect vulnerable populations first and foremost. It is not always possible to determine someone’s vulnerability, for example, if a patient is victim of reproductive coercion or is experiencing intimate partner violence and so, the policy must ensure that access to care is not dependent on individual assessment of the patient’s circumstances.

Opinion on the policy itself (if it could be clearer, etc.):

The policy is clear and provides important guidance to members on the practice and limitations of conscientious objection. That said, the policy should have more information and resources on the disproportionate impact of conscientious objection on sexual and reproductive health care and on vulnerable populations. There should also be more information on the important reasons why the practice of conscientious objection should be limited and on the responsibility born by health care providers to ensure access to health care by expending clinical skills and in building the capacity to provide affirming, non-stigmatizing care to diverse populations.

Is there any additional guidance that should be included in the companion guide?

Action Canada believes that more information should be shared on positive steps physicians must take to address gaps in access to services that are stigmatized and marginalized to address the disproportionate impacts of conscientious objection and lack of skills on sexual and reproductive health care. Physicians must educate themselves with the support of the College on how to provide affirming and non-stigmatizing care as it relates to sexual and reproductive health care, including abortion care and gender-affirming care. Key reports and information should be shared with members on the experience of vulnerable populations about unmet needs (e.g., the Transpulse Canada report and the Turnaway study.

Guidance should be provided in the companion document on where to seek out professional development opportunities, for instance on how to integrate medication abortion care in their practice, where lack of competences could lead to gaps in access to health care.

Any additional comment?

In realizing the right to health (as outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Committee which monitors compliance with the ICESCR), Canada has an obligation to establish accessible, transparent and effective mechanisms of monitoring and accountability. Professional bodies, such as the College of Physicians and Surgeons of Ontario, are obligated to enforce such accountability mechanisms.

Action Canada therefore recommends that the College clearly outline the measures in place to address violations of this Policy. Similarly, if not already in place, the College must establish and clearly state the mechanisms in place to track and monitor instances where physicians have resorted to conscientious objection. This would ensure that the practice remains a personal decision and is not a reflection of a broader institutional objection (where institutions may not be allowing physicians to provide certain services or where team leads or people in positions of authority impose their own beliefs on fellow health care providers). In monitoring such instances, the College can detect patterns of objection in a way that could reveal institutional involvement either through biased recruitment practices or the enforcement of moral expectations on physicians. A registry of physicians who resort to conscientious objections would also support the monitoring of the referrals made to ensure access. With this registry being public, it would make it possible for patients to know if their primary health care provider objects to any services they may need and as such, could make informed decisions about which conversations to have with them and/or if they wish to remain their patients.

This recommendation is in line with the Concluding Observations of the Committee on Economic, Social and Cultural Rights (2009) and the Committee on the Elimination of Discrimination Against Women (2013) in response to violations of women’s sexual and reproductive rights in cases where physicians had refused to provide health services on moral or religious grounds. In the Section: “Limiting Health Services for Legitimate Reasons, ii) Ensuring Access to Care” it is essential that further clarity be brought to the issue of accessibility, particularly in contexts where there are few health care providers (e.g.: in rural or remote areas) and other factors that create barriers for patients to access services, including factors listed in the section on Human Rights, Discrimination and Access to Care.

Action Canada recommends requiring unwilling or clinically incompetent service providers to ensure that the referral provided is truly effective or for unwilling physicians to provide the service in the absence of an effective referral. In the section: “Limiting Health Services for Legitimate Reasons, ii) Ensuring Access to Care” attention must be paid not only access to certain services in cases where physicians are unwilling to provide services due to religious or moral beliefs, but also in cases of clinical incompetence. Action Canada recommends that this section be adjusted so as to ensure that the same standard of effective referral be applied in both cases of conscientious objection as well as clinical incompetence. In line with recommendations made by the Ontario Human Rights Commission during the College of Physicians and Surgeons Policy Review: Physicians and the Ontario Human Rights Code, Action Canada fully endorses the recommendation that physicians who limit their services in settings such as hospitals, clinics and shared service practices, be required to inform administrators and fellow physicians accordingly to prevent any potential discriminatory impact on patients.

Action Canada also recommends that the College takes positive steps to ensure stigmatized and marginalized health care services are offered in affirming and culturally competent way by their members, to address issues of unconscious bias and to encourage professional development where vulnerable populations may be more likely to encounter barriers or have unmet health needs.

It is Action Canada’s belief that the practice of conscientious objection in the context of health care provision should be onerous, be closely monitored and be tied to clear accountability mechanisms. The following rights are engaged by the issue of access to health care services such as abortion care:

  1. Right to life (because mortality due to unsafe abortion)
  2. Right to health, includes Sexual and Reproductive Health
  3. Right to information
  4. Right to privacy (body autonomies and agency)
  5. Right to non-discrimination and gender equality
  6. Right to be free from harmful stereotypes
  7. Right to be free from inhuman and degrading treatment
  8. Right to benefit from scientific progress
  9. Right to access justice

The international UN human rights framework clearly define obligations which include the duty to remove barriers to abortion care including but not limited to misleading information, waiting periods and conscientious objections. Therefore, as health care regulators, the College has an obligation to ensure this policy supports is in compliance with human rights obligation and ensures access to health care people in Ontario are entitled to.

Posted on 2021-08-19
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