Date: Feb. 20, 2015
To whom it may concern:
Following are some of the basic concerns that I urge you to consider in regard to the above-mentioned document (see here).
Sincerely,
Yours truly
Since
‘ought’ implies ‘can,’ this statement is, to speak precisely, certainly false.
A fiduciary relationship may well entail an ethical obligation to aim to act in accordance with whatever
elements of trust are invested in that particular relationship, which elements
are derived from whatever responsibilities are rightly considered to be
entailed by that relationship. However, a fiduciary relationship as such
certainly does not entail a requirement of actually
acting in the best interests of the beneficiary in the relationship. This
is not a minor issue. To state the issue in the way the draft proposal does obscures
the crucial and quite unavoidable element of the exercise of discretionary
judgment on the part of the trustee (the physician) in determining what is in
fact in their patient's best interests. Such judgment, since it is fallible and
will in some cases be irreducibly controversial, cannot serve as the basis for
any kind of straightforward "requirement to act in a patient's best
interests." What is at stake in the fiduciary relationship between
physicians and patients is precisely trust relative to making these kinds of
unavoidably fallible judgments (which judgments may lead to actions which
in fact turn out not to be in the
patient's best interests). Obviously one crucial point to retain in seeking to
enunciate an intelligent and just policy regarding professional obligations is
the fact that different individuals will have different judgments as to what
constitutes “acting in the patient’s best interests,” and that these diverse
judgments are from the nature of the case necessarily logically prior – and
thus prior in the order of ethical analysis – to any obligations to act in
accordance with any (putatively) objective standard of acting. From the start,
the CPSO draft policy appears to systematically ignore this crucial point.
Lines
14-15: “The key values of professionalism articulated in the College’s Practice
Guide – compassion, service, altruism and trustworthiness – form the basis
for the expectations set out in this policy.”
This
claim seems to be pure bafflegab. It should be obvious to anyone who considers the
matter that these “key values” are far too vague and subject to diverse
interpretation to actually form any real, substantive basis for the various specific
expectations set out in the draft policy.
Lines
138-141: “Where physicians are unwilling
to provide certain elements of care due to their moral or religious beliefs,
physicians must communicate their objection directly and with sensitivity to
existing patients, or those seeking to become patients, and inform them that
the objection is due to personal and not clinical reasons.”
Implicit
in this statement is the judgment of the CPSO that any "not clinical"
reasons must be "personal" reasons. This is vague at best. It would
seem to be clearly beyond the competence of the CPSO to make such an implicit
determination about the general nature of reason-giving: that reasons must be
either “clinical” or “personal.” If this is a merely stipulative use of the
word “personal” – i.e., by stipulation any “non-clinical” reason will be called
“personal” - then the CPSO should clarify what is meant by this distinction and
attempt to offer some justification for choosing to express itself in terms of
such an arbitrarily prejudicial dichotomy in this context. The governing
council of the CPSO may well have some more-or-less collective
"personal" view about the general nature of the "non-clinical"
reasons that physicians inevitably have, and in accordance with which they may
be unwilling to provided "certain elements of care." But this
"personal" view of the CPSO council – and to be clear, the view is
clearly "non-clinical," it has nothing whatsoever to do with medical
expertise, it is a highly controversial ethical and meta-ethical question - is
not one which the CPSO has any right to impose on its members and their
practise, or on their patients, who also have a stake in being able to rely
upon the integrity and autonomy of their physicians, without this integrity and
autonomy being compromised by seemingly groundless thought-policing from the
physicians’ professional organization. Certainly, if the CPSO does wish to
arrogate to itself the right to dictate to its members certain ethical and
meta-ethical positions in accordance with which its members must practise, then it
has the obligation to communicate to its members and to the general
public the reasons by which it holds itself to possess any such right, and why
it holds itself justified in promoting, under threat of sanction, whichever
particular ethical and meta-ethical suppositions it chooses to promote. The
current draft policy does not provide, nor even attempt to provide, any such
justification. In fact, it seems highly unlikely that the CPSO could justify
claiming for itself such an aggressively ideological mandate, but if this is
how the CPSO wants to behave, for the sake of consistency it must at least
communicate the grounds for its judgment. Failure to do so is a failure of the
CPSO to act in a way that upholds the dignity and autonomy of both physicians
and patients, who prima facie should not be subjected to the seemingly whimsical
behest of the decidedly "non-clinical" judgment of the CPSO in controversial
ethical matters.
Lines 143-144: “In the course of
communicating their objection, physicians must not express personal judgments
about the beliefs, lifestyle, identity or characteristics of existing patients,
or those seeking to become patients.”
Again,
this claim is hopelessly vague and far too categorical. Besides the problem of
failing to define what it is that constitutes a “personal judgment” as such, the
scope of what might fall under the description of “expressing personal
judgments about the beliefs, lifestyle, identity or characteristics of patients”
is far too broad. To insist that physicians “must not” do this very broad and ill-defined
thing is not only silly, in light of its vagueness, but would also seem to
suggest that physicians’ responsibility to avoid saying anything that their patients
might find disagreeable is more important than their responsibility to provide the
care that, in the professional judgment of the particular physician, is in the
best interests of the patient. Such a policy would seem to undermine the specific
fiduciary relationship existing between doctors and patients, rather than
safeguard it.
Lines
152-153: “Physicians must provide information about all clinical options that
may be available or appropriate to meet patients’ clinical needs or concerns.”
This
claim is again too categorical – “Physicians
must…about all…” – in relation to the vague
requirement it enjoins – “that may be…to
meet patients’ clinical needs or concerns.”
In reality, physicians must exercise
judgment, first in assessing the “clinical needs or concerns” of patients,
and then in providing information about the relevant, available clinical
options of which they are aware, and which they actually deem to be appropriate. A categorical insistence on informing
patients of all options which just may be available or appropriate obscures
this reality.
Lines
155-160: “Where physicians are unwilling to provide certain elements of care
due to their moral or religious beliefs, an effective referral to another
health care provider must be provided to the patient. An effective referral
means a referral made in good faith, to a non-objecting, available, and
accessible physician or other health-care provider. The referral must be made
in a timely manner to reduce the risk of adverse clinical outcomes. Physicians
must not impede access to care for existing patients, or those seeking to
become patients.”
This
statement is again vague and smacks of a needless ideological imposition upon
the integrity, autonomy, dignity, and professional judgment of physicians,
which imposition, again, will tend to impair the fiduciary relationships of
physicians with patients. The draft does not appear to present any principles upon
which this policy could be grounded or justified. The statement is plagued by
the usual vagueness: What is meant by “certain elements of care”? Does this
refer to “elements of care” in the general sense of effective options for
addressing genuine medical issues, i.e., issues pertaining to the health of the
patient? Or does “elements of care” refer to particular procedures that
patients might request, regardless of the necessity of that procedure for
addressing any genuine health issue? Unless the CPSO has a great deal more to
offer in terms of relevant principled justification, the draft should be
amended so that the latter, unreasonably aggressive construal of the fiduciary
duty of physicians towards their patients is clearly excluded.
Lines
168-169: “Physicians must provide care that is urgent or otherwise necessary to
prevent imminent harm, suffering, and/or deterioration, even where that care
conflicts with their religious or moral beliefs.”
This
statement is again too categorical. The point of balancing rights is that
everyone’s rights matter. To say to someone, “I don’t care how wrong you think
this is; you must do it,” might be justified in some very rare circumstances;
but to effectively make this kind of demand in a blanket way, in relation to
such vague conditions, is certainly an overreach and a grave imposition upon
the conscience and professional judgment of physicians. In making this kind of
statement the drafters of this policy seem to have forgotten the basic
necessity of prudential judgment in the matter of balancing conflicting rights,
as well as their own fiduciary duties towards their professional members, which
must surely include a duty to respect the autonomy, dignity, trustworthiness,
etc. of those members.
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