Dear Mr. Barichello:
This will acknowledge the receipt of your letter dated August 22, with its several enclosures.
It seems plain that what you would like to effect is a change in clinical practice patterns of certain segments of the Canadian medical profession.
The Canadian Medical Protective Association, a medical mutual defence organization, does not enunciate or endorse standards or guidelines of clinical practice.
If you have not already done so, you might consider getting in touch with national clinical organizations, such as the Canadian Paediatric Society and the College of Family Physicians of Canada.
Yours truly,
[signed]
Stuart B. Lee, MD
Secretary-Treasurer
March 22, 2002
Dr. John E. Gray
Secretary-Treasurer/CEO
Canadian Medical Protective Association
Dear Dr. Gray:
Re: College of Physicians and Surgeons of Saskatchewan
I am in receipt of a memorandum issued recently by Dr. D. A. Kendel, Registrar of the College of Physicians and Surgeons of Saskatchewan. The memorandum, which is quite strongly worded, advises physicians to consult with and seek advice from the Canadian Medical Protective Association before performing infant male circumcision for non-medical reasons. A copy of the memorandum is enclosed with this letter.
I am currently registered in Alberta, Saskatchewan, and Ontario, and therefore this memo is of direct interest to me in my practice. I would appreciate receiving the CMPA's thoughts on the content of the memo. Given the College's statements, some guidance is required from the CMPA regarding possible legal exposure arising from the performance of routine (non-therapeutic) infant male circumcision. In the absence of valid consent, lawsuits could conceivably be brought by the child's parents, or by the child himself when he reaches the age of majority. Besides asking the CMPA's general opinion on this matter, I would appreciate answers to some specific questions regarding consent for infant male circumcision.
- In the context of obtaining consent for surgery, does the law differentiate between (a) a patient who is incompetent by reason of age, (b) a patient who is incompetent because of a mental disability, (c) a patient who is unable to give consent due to medical status (say a coma), or (d) a person who is unable to provide consent for some other reason?
- In terms of consent for surgery, are infants on the same legal footing as adult incompetent patients? If so, does a physician have to meet the requirement of therapeutic benefit for a surgical intervention on an incompetent patient, as set out by the Supreme Court in Re Eve? On the other hand, if infants are not on the same legal footing as adult incompetent patients, then what is their status with respect to the provision of consent?
- In Eve, the Supreme Court stated that "the onus of proving the need for the procedure is on those who seek to have it performed." Does this mean an attending physician must receive proof of the need for newborn circumcision from the parents/guardians? What would constitute adequate proof?
- Does a physician have to meet the standards for informed consent set out by the Supreme Court in Reibl v. Hughes and Hopp v. Lepp, or is some lesser standard acceptable? If so, what is that standard?
- What constitutes valid consent for surgery on an incompetent patient and/or an infant? That is, what specific components must be present and/or what professional requirements must be met? Does the issue of medical need have to be considered?
- In the event that an infant is circumcised as per the religious requirements of the parents, and upon reaching the age of majority the infant decides to launch an action against the physician who performed the non-therapeutic circumcision, what would be the position of the CMPA with respect to representing the physician? What possible grounds would the infant raise against the attending physician when the infant reaches the age of majority?
- Ultimately it would appear that the key question is the ability of parents to consent to a non-therapeutic surgical procedure that is irreversible, removes normal sexual tissue, and is not a "de minimis" procedure. What is the CMPA's position with respect to representing the attending physician in such a case, and what are the possible grounds that would be raised or defended against in such a case?
Given the caution issued by the College in Saskatchewan, I would greatly appreciate a prompt response to this inquiry. Do not hesitate to contact me if you would like clarification of my request. My contact information is listed above. Thank you for considering this matter.
Yours truly,
[signed]
Arif Bhimji MD MBA
April 3, 2002
Dr. John E. Gray
Secretary-Treasurer/CEO
Canadian Medical Protective Association
Dear Dr. Gray:
I am the current spokesperson for the Association for Genital Integrity, a Canadian group dedicated to safeguarding the right of every person to physical integrity. The Association is involved in advocacy and public education.
The Saskatchewan College of Physicians and Surgeons recently issued a memorandum advising physicians to consult with the CMPA before circumcising male minors for non-medical reasons. I understand the CMPA is preparing a response to this memorandum. My reason for writing is to provide material that might be of assistance to the CMPA in its research on this issue.
I enclose the following material:
- Letter dated November 10, 1997, from Dr. Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law, to Dr. Robin Walker, a member of the Fetus and Newborn Committee of the Canadian Paediatric Society. Dr. Somerville states that "the present law would prohibit circumcision of a child unless the persons consenting to this and the physician carrying it out can show that it is justified."
- Letter dated August 23, 1999, from the College of Physicians and Surgeons of British Columbia, stating that "legal questions as to the rights of children and the right of choice of parents, are matters for the courts to decide, as are interpretations of the Charter of Rights and Freedoms and its application to newborn infants."
- Letter dated December 3, 1999, from Dr. Margaret Somerville, regarding statements made by the Attorney General of British Columbia. In this letter Dr. Somerville writes that "non-therapeutic infant male circumcision is an assault by the physician on the child, unless it can be justified on some basis other than just the consent of the parents."
- Letter dated July 4, 2000, from Mr. Maurice D. Brubacher, Executive Director, Family and Child Services, City of Guelph and County of Wellington, stating that "the question of whether circumcision fits the definition of child abuse, and the related question as to how Children's Aid Societies and law enforcement authorities will eventually respond to this issue will still need a lot of clarification, and some test cases."
The Association for Genital Integrity applied for funding from the Court Challenges Program of Canada (CCP) to contest the constitutionality of section 268 of the Criminal Code. The Association contends that this section of the Criminal Code, which prohibits female genital mutilation, is discriminatory because it does not protect males and females equally. The CCP denied our application for funding on the grounds that the application did not adequately establish discrimination. It may be worth noting, however, that in the opinion of the CCP, section 268 "does not appear to limit in any way the legislative protection against aggravated assault that the provision establishes for all persons." The CCP suggested that section 268 of the Criminal Code provides adequate protection to male infants "from aggravated assaults involving male genitalia."
In addition to the correspondence noted above, the Association is in possession of hundreds of letters on the subject of male circumcision sent by Canadian authorities, including colleges of physicians and surgeons, human rights commissions, ministries of health, attorneys general, and child protection agencies. On the basis of the above correspondence it appears that there is considerable confusion about the legal status of infant male circumcision undertaken by physicians for non-therapeutic reasons.
I trust the enclosed material will be of interest to the CMPA. Do not hesitate to contact me if I could be of further assistance.
Sincerely,
[signed]
D ennis H arrison