Feedback for Proposed Revision of the Code of Ethics

Abortion Rights Coalition of Canada.  ·  Nov. 9, 2015

Dear Ontario College of Pharmacists,

I am writing on behalf of the Abortion Rights Coalition of Canada. Thank you for the opportunity to provide feedback on your revised Code of Ethics. I think it is excellent in most respects. There’s just one aspect I’d like to comment on – the issue of conscientious objection – and ask if you would please consider my suggestions.

Your Clause 2.13 states:

Members must, in circumstances where they are unwilling to provide a product or service to a patient on the basis of moral or religious grounds, ensure the following: i. their conscientious objection is conveyed to the pharmacy manager, not the patient; ii. there is an alternative provider available to enable the patient to obtain the requested product or service, which minimizes inconvenience or suffering to the patient.

However, allowing pharmacists to object on their own personal moral or religious grounds directly contradicts these two statements in your Code of Ethics:

In choosing to become a pharmacist or pharmacy technician we acknowledge our understanding and commitment to the professional role, recognizing it is not about us – our own personal or business interests – it is about the patient.

Members recognize that their patients’ best interests must always override their own interests or the interests of the business which the member owns, has a financial interest in or is employed by.

Allowing pharmacists to object also conflicts with many other principles in your Code of Ethics, such as:

We appreciate that our patients are vulnerable and may often be limited by personal and circumstantial factors… and there is an imbalance of power with the healthcare professional holding that power.

When we become a regulated healthcare professional we implicitly enter into what is commonly referred to as a “social contract with society.”

This contract requires that we keep our promise to act in the best interest of our patients and place their well-being first and foremost…

Respect for Persons/Justice: We demonstrate this when we respect our patients’ vulnerability, autonomy and right to be self-governing decision-makers in their own healthcare. The principle of “Justice” requires that we fulfill our ethical obligation to treat all patients fairly and equitably.

Accountability (Fidelity): [This] principle directly ties us to our professional promise to be responsible fiduciaries of the public trust ensuring that we keep our promise to our patients and society to always and invariably act in their best interests and not our own.

You may believe that your Code of Ethics still justifies conscientious objection by setting constraints around how it is exercised, so as to ensure the patient can still obtain the prescription and is not even aware that the pharmacist has a moral objection. But placing restrictions around CO means you are trying to minimize its harms. It’s a tacit acknowledgment that CO is contrary to normal practice, and intrinsically harmful and unethical. This should raise serious questions on whether CO should be allowed at all. There is also an assumption that such restrictions are a reasonable compromise that would be effective in practice. But are they?

My colleague Dr. Christian Fiala and I have published several articles on the topic of conscientious objection in reproductive healthcare. We make the case that it should be generally prohibited:

'Dishonourable Disobedience': Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection Christian Fiala and Joyce H. Arthur Woman - Psychosomatic Gynaecology and Obstetrics. 2014 http://www.sciencedirect.com/science/article/pii/S2213560X14000034

‘Why We Need to Ban ‘Conscientious Objection’ in Reproductive Health Care Joyce Arthur and Christian Fiala. RH Reality Check. May 2014
http://rhrealitycheck.org/article/2014/05/14/why-we-need-to-ban-conscientious-objection-in-reproductive-health-care/

The CO debate: ‘Conscientious Objection’ is still dishonourable disobedience. Joyce Arthur and Christian Fiala. bpas Reproductive Review. July 2014 http://www.reproductivereview.org/index.php/rr/article/1606/ Our position is that so-called “conscientious objection” is not actually CO at all and is a misnomer. A person in a privileged position of authority (there by choice) is imposing their personal beliefs on a vulnerable other in a dependent position (not there by choice). Pharmacists and other healthcare professionals (HCPs) have a monopoly on the practice of medicine, and they voluntarily entered a profession that fulfills a public trust. They know they have obligations to provide care to patients without discrimination, and that patients are completely reliant on them for essential healthcare and can’t go elsewhere. These factors make the exercise of CO in reproductive healthcare a violation of medical ethics and an abuse of HCPs' position of trust and authority. It is also discrimination because the vast majority of refusals in the healthcare profession relate to women’s reproductive health needs, specifically contraception or abortion. Your Clause 2.13 would largely lead to pharmacists refusing to dispense birth control and emergency contraception, or in future, Mifegymiso. Such refusals would be discrimination on the basis of gender, because they affect only women and some members of the LGBTQ community.

CO in reproductive healthcare violates the principle of public accommodation, which requires the discounting of individual conscience within a profession to prevent discrimination. In the same way that the U.S. Civil Rights Act prohibits business owners from refusing to serve black people, a HCP’s right of conscience while “on the job” should be limited to prevent discrimination and protect the rights of others. In the 2001 Supreme Court decision Trinity Western University v. BC College of Teachers, the court ruled that teachers who adhere to certain religious beliefs are free to hold those beliefs, but could not act on them in the classroom if it would result in discriminatory conduct. Likewise, pharmacists are free to hold personal beliefs against abortion and contraception, but would be guilty of discrimination if they acted on those beliefs in their practice by imposing them onto dependent patients.

I dispute that your constraints around the practice of CO are reasonable or would be effective. First, requiring an objecting pharmacist to refer the patient to another pharmacist does not actually ‘fix’ the objection, from the point of view of objectors. For some it might, but many objectors will refuse to take any action that they feel makes them “complicit” in contraception or abortion, because they strongly feel these are immoral. Indeed, a number of U.S. states allow pharmacists to refuse to refer or provide any information to patients. Cases where pharmacists refuse to refer or even confiscate the prescription occur not infrequently in the U.S. and have probably occurred in Canada as well. I believe these problems arise because the referral requirement is a fundamental contradiction of the principle of CO – it tries to protect pharmacists’ conscience up to the point where they are required to violate their conscience.

Your restrictions on the exercise of CO bring up other troublesome practical and ethical issues, which I believe would contribute to making your policy unworkable:

The objector must convey their CO to the pharmacy manager, not the patient: It is difficult to imagine that the patient, in many cases, won’t realize something is wrong, and start to question the pharmacist or feel worried or uneasy. The fact that a “Code of Ethics” is recommending subterfuge by trying to hide the pharmacist’s objection from the patient is troubling and should alert you that something is fundamentally wrong with allowing CO in the first place. Second, even if another pharmacist is available to fill the prescription, it can still cause an unnecessary (although hopefully short) delay. But if the patient must be referred to another pharmacy entirely, the jig is up and she can be left feeling humiliated, angry or upset. Further, the patient will be far more inconvenienced, to the possible extent of being unable to fill the prescription if she’s unable to travel to another pharmacy. Delays in prescribing emergency contraception are especially critical and can mean the difference between avoiding unintended pregnancy and having an abortion or unwanted birth. These are very serious consequences, yet they are glossed over by your apparent assumption that this restriction on CO will work effectively in practice.

The objector must ensure an alternative provider is available: There is no consideration given to the many occasions and pharmacies where there is only one pharmacist on duty, or for cases where other pharmacists at the same store may also be objectors, or for small towns and rural areas where only one pharmacy exists. Such circumstances can result in a complete denial of care with resulting harms to the patient, potentially serious ones. Second, the implication is that the objector will have to fill the prescription in such cases despite their personal or religious beliefs. However, if they hold their beliefs strongly (as almost all would), they would likely still refuse to do so despite your Code of Ethics. You cannot expect objectors to suddenly sacrifice their beliefs when you’ve already given them permission to compromise their duties in order to practice their faith. Once non-rational elements like personal beliefs are allowed to dictate the care of patients, evidence-based medicine and ethical codes cannot compete, and can no longer effectively limit the practice or expansion of CO.

Your Code notes that in exchange for its “social contract with society,” the pharmacy profession is given the autonomy to govern ourselves as a self-regulating profession with all the privileges and statuses afforded [to] regulated healthcare professionals.” Self-regulation is a privilege granted to HCPs by the Medical Profession Act, and more broadly is a privilege granted by the public itself. It is based on public trust, which means this privilege can be revoked if abused. If we cannot trust certain HCPs to fulfill their professional obligations by providing the most appropriate care or medicines that are available and legal, then those HCPs do not deserve an unencumbered right to self-regulation.

In conclusion, I would urge the Ontario College of Pharmacists to please take the following steps to ensure that pharmacists fulfill their duties to patients:

  1. Revise Clause 2.13 to prohibit members from refusing to provide a product or service to a patient on the basis of moral or religious grounds.
  2. If the College feels they cannot prohibit members from exercising CO, implement clear monitoring and enforcement guidelines for objectors. For example, they should be registered and be required to complete a report for every refusal. They should never be allowed to work alone, but always alongside another non-objecting pharmacist. Other disincentives such as allowing employers to prioritize hiring of non-objectors, and paying objectors less, could also be considered to gradually reduce the number of objectors in the field.
  3. In cases of violation, ensure that objectors are disciplined appropriately with consideration given to the extent of harm done to the patient. For example, if the patient ultimately became pregnant and had to have an abortion because of a pharmacist’s refusal to prescribe emergency contraception, the pharmacist should lose both their license and their job.
  4. Implement new eligibility criteria at universities and schools of pharmacy, so that students who wish to train to become pharmacists are ineligible from entering the program if they would object to prescribing contraception (at least). Prescribing contraception is an integral and very common service, so there is absolutely no excuse for pharmacists to not dispense it. Those who cannot fulfill basic job requirements have no right to enter that profession.
    Thank you very much for considering my views.
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