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Correspondent: COLLEGE OF PHYSICIANS & SURGEONS November 1, 1999 Dear Professor MacDonald: This is in response to your letter of October 25th, 1999. The points you bring forward highlight many of the difficulties which have faced members of the medical profession for some time. I myself was involved in this debate when I was in practice in paediatrics years ago in Winnipeg. Even at that time, the intensity with which some people offered opinions was surprising. And, at that point, we were only discussing whether circumcision should remain a service covered by Medicare. In any case, to try and deal with your specific points, as they relate to our office, I will offer a few comments. This office is charged with regulating the standards of medical care and practice. When dealing with ethical matters, we have generally provided direct commentary to physicians. This is in the form of regulations and ethical codes. For your interest, these are available on our website. When discussing clinical standards, in the sense of what kind of treatment should be recommended, and how it should be performed, our advice to physicians is to adhere to the "prevailing" practice. In other words, it is the obligation of physicians to familiarize themselves with the latest general recommendations, as may be brought forward by various bodies. The national specialty societies, such as the Canadian Paediatric Society, are often a source for this advice. Having said that, it is true that this does create a somewhat ill-defined standard. There may be different opinions from different sources. The reality is that this is simply the nature of medical practice. There is never just one way to do things. To get to the point at hand, then, the standards for the appropriate recommendations regarding circumcision would be that which would be considered to be prevailing in the general medical community. At this point, although there has certainly been some change over the years, these recommendations remain somewhat ambiguous. For example, while the Canadian Paediatric Society sees no place for "routine" circumcision, they have not gone so far as to state it should not be performed. One can extract similar comments from similar bodies in other countries. To that end, as a question of medical practice, circumcision appears to remain within the realm of that which might be considered acceptable. However, like any procedure or treatment, it is a question of providing appropriate information to the parties, such as parents. I believe this is where the system fails most miserably. More often than not, there is virtually no discussion in advance with the parents. Any discussion which might occur occurs shortly after the baby's birth when there may be neither time for appropriate advice, nor time for appropriate reflection. In part, this is somewhat related to the way that children are treated. As noted above, I practised paediatrics for some time. Only on a couple of occasions did I meet a family before the child was born. Sometimes I did not see the child until after the circumcision had already been performed by the surgeon. In other words, there was little opportunity for any consent to such to be truly "informed." In any case, physicians remain confronted with a procedure which has some advocates, some possible benefits, and without a really clear consensus arising one way or the other. Having said that, you also raise issues regarding the rights of parents to consent to such procedures. To that end, despite all of the scientific claims one way or the other, I have generally thought of this as essentially a cosmetic procedure. Whether we liked it or not, this was the usual reason that it was requested by family. Several studies have confirmed this. I recall one of them which, rather surprisingly, stated that this need to "look like daddy" was actually more important for mothers than for fathers. In any case, if one looks at it that way, then one comes to the next question as to whether cosmetic procedures can be consented to by parents. As a general rule, where the procedure would offer a benefit to the child, such as the correction of abnormally shaped ears, it has been considered acceptable for parents to consent. On the other hand, if a parent wanted to alter a child's appearance for completely aesthetic reasons, without clear benefit to the child, most would consider this not acceptable. In terms of the circumcision debate, one can see arguments expressing the view both ways. The debate has also recently been considered analogous to concerns regarding female genital mutilation. This is a procedure without any accepted benefits, and many accepted harms. Other than involving genitalia in children, they are really not the same thing. Nevertheless, if you wish to press the point one way or the other, you can try and see them as such. As an almost final point, I note that you have referred to some language from the Supreme Court decision in Re Eve. This was a somewhat different situation in that it was relating to an adult who was incompetent to consent to treatment. Some of the concepts are therefore different. What is worth noting is that this decision by the Supreme Court has been criticized when similar cases have reached other high courts in other countries such as England, the United States, and Australia. Having taken quite a different view of the situation, they question whether a retarded adult should be denied the same access to elective surgery as anyone else. It is hard to see how the circumcision debate can really take advantage of these arguments. In any case, in my own dealings with this matter, I continue to be struck by the cultural issues. When our paediatric community was discussing whether circumcision should be an insured service, the most vocal proponents of such were, in fact, our Jewish colleagues whose patients by and large had the procedure done, but as part of a religious ceremony. In other words, they were the least affected. At one particular meeting some years ago, we took a poll of physicians' attitudes to the procedure, and to be completely blunt, the biggest determinant was whether they had had it done themselves. In a more extreme situation, I recall one of my colleagues had had a family recently move from Africa. They had a boy born in Canada and were asked whether they wished him to be circumcised. Apparently, they were dumbfounded by the idea that there was anything to circumcise on a boy. My own sense is that it is a problem which will eventually go away. In most provinces now, it is no longer an insured service. This has significantly reduced its use. Furthermore, because of potential risks of litigation, many physicians will no longer perform them. As the number of uncircumcised boys increases, the social pressure, if there is any, for the procedures tends to decrease. In the end, then, the matter continues to remain somewhat of a dilemma for the medical community. As in the general population, there are strong opinions on both sides. In that context, I hope I have answered some of your questions, although I realize I have not addressed all of them. This is obviously a matter from which much discussion can flow. If you wish to contact me further, please feel free to do so. Yours sincerely,
January 18, 2002 Dr. Ed Schollenberg, Registrar
Dear Dr. Schollenberg: I am writing to inquire about the standard of practice in New Brunswick with respect to infant male circumcision. I've been researching circumcision for several years. My letters on this subject have been published in a number of academic journals, including the Lancet, the Journal of the American Medical Association, and the Journal of Law and Medicine. I have obtained recent data on the incidence of infant male circumcision in several provinces. Data for New Brunswick and Nova Scotia are presented below for purposes of comparison. The data were supplied by the provincial departments of health, and reflect newborn circumcisions performed in hospitals.
Based on the above data, the incidence of infant male circumcision is about 10 times higher in New Brunswick than in neighbouring Nova Scotia. Is this not a surprising degree of variability in a paediatric surgical intervention? Do physicians in different provinces not follow the same rules for operating on infants? Routine infant circumcision is not an insured service in either province, having been de-insured in New Brunswick on September 15, 1994, and in Nova Scotia on January 20, 1997. The recognized authority on child health in Canada, the Canadian Paediatric Society, recommends that newborn circumcision "should not be routinely performed." Does the ten-fold variability in the use of this procedure perhaps indicate that New Brunswick physicians are not as up-to-date on the latest literature and guidelines on circumcision as their colleagues next door in Nova Scotia? The performance of infant male circumcision raises a number of important ethical and legal issues. First and foremost among these is the issue of consent. The Supreme Court ruled in Eve that parents/guardians do not have the legal authority to consent to a non-therapeutic surgical operation being performed on their child. The Court concluded with the general injunction that Since, barring emergency situations, a surgical procedure without consent ordinarily constitutes battery, it will be obvious that the onus of proving the need for the procedure is on those who seek to have it performed.Although the direct and immediate focus of Eve was the non-consensual sterilisation of a young woman with a mental disability, the language of the passage cited makes it clear that the stricture applies to surgical operations in general. Another important issue is the standard of informed consent. This standard, which was set out by the Supreme Court in Reibl v. Hughes and Hopp v. Lepp, requires physicians to disclose—without being asked—all material risks of treatment, including risks that are special or unusual. In the context of infant male circumcision, these risks include hemorrhage, occasionally to the point of requiring a transfusion; life-threatening infections such as meningitis, gangrene, staphylococcal scalded skin syndrome, and scrotal abscess; acute urinary retention leading to renal failure; penile ischemia; necrosis; buried penis; partial or complete penile amputation; iatrogenic hypospadias; total denudation of the penis; pneumothorax; urethral fistula; meatal ulceration; keloid formation; ruptured bladder; gastric rupture; tachycardia and heart failure; myocardial injury; pulmonary embolism; unilateral leg cyanosis; and death. To assist me in understanding the position of the College on the issue of infant male circumcision, I would appreciate answers to the following questions:
Yours truly,
cc: Council Members
January 24, 2002 Dear Mr. H arrison: This is in response to your letter of January 18th, 2002. This issue has been raised before. To that end, I am enclosing correspondence I forwarded a few years ago on this topic. I believe my comments are still apropos. If you have any questions, please feel free to contact me. Yours sincerely,
February 4, 2002 Dear Dr. Schollenberg: Thank you for sending me a copy of your letter to Professor R. C. MacDonald dated November 1, 1999. The gist of the letter seems to be that there is no consensus on circumcision in the medical community and that consequently, it is difficult to set any standards for this procedure. You describe neonatal circumcision as "a procedure which has some advocates, some possible benefits, and without a really clear consensus arising one way or the other." The existence of "some possible benefits," without a clear consensus, does not seem like the most compelling of reasons for letting someone operate on an infant. If a consensus on a surgical operation is lacking, then I would have thought the College would be motivated to prohibit physicians from performing the operation on society's weakest and most vulnerable members. In any case, to say there is no consensus on neonatal circumcision is somewhat misleading. Although the procedure is controversial, medical organizations throughout the world agree that it is not medically justified. According to your letter, standards should reflect whatever physicians are actually doing in practice. In other words, a "reasonable physician" does what other physicians do. The courts, however, are moving away from accepting what "reasonable physicians" might do, towards supporting what "reasonable patients" might expect. I doubt that a reasonable patient would expect to have normal anatomy amputated without his or her personal informed consent. As I'm sure you are aware, doctors who do not understand these changes in society and in the law are at increased risk of liability in negligence. One of the issues I raised in my letter of January 18th was the high rate of neonatal circumcision in New Brunswick relative to some other provinces. At about 18 percent, the rate of neonatal circumcision in New Brunswick hospitals is more than 10 times the rate in Nova Scotia, and more than 40 times the rate in Newfoundland and Labrador. I believe that wide variations in rates of surgery are generally viewed with concern by the medical profession. When the authors of a recent study on ear-tube surgery found an almost ten-fold difference in the rate of this procedure in different parts of Ontario, they described the variability as follows: Small-area variations in surgical rates raise concerns about access to care, treatment appropriateness, and the quality and cost of care.1Does the College have concerns of this kind in regard to neonatal circumcision? If not, then I would be interested in knowing why. You state in your letter that consent for neonatal circumcision is rarely "truly informed," and that providing appropriate information is where the system "fails most miserably." I don't know what the College is doing to remedy this situation, but when I went to the College's Web site and searched for "circumcision," the result was "0 entries found." One thing I did find, however, under "Code of Ethics," was the following directive: Where possible, physicians should confirm the legal status of any consent provided by an individual other than the patient.I trust the College will follow its own advice and confirm the legal status of consent for neonatal circumcision. To assist the College with its research, I cite a couple of passages from The Ethical Canary, a recent book by Dr. Margaret Somerville. The book devotes a chapter to the ethical and legal issues raised by infant male circumcision (pp. 202-219: "Altering Baby Boys' Bodies: The Ethics of Infant Male Circumcision"). Dr. Somerville is a professor in the faculties of law and medicine at McGill University, and the founding director of the McGill Centre for Medicine, Ethics and Law. Excerpt #1: In general, parents cannot authorize non-therapeutic interventions—that is, routine circumcision—on their children. A competent adult man could consent to non-therapeutic circumcision on himself, but this does not mean he may consent to it on his son.2 Excerpt #2: Unless the potential and actual medical benefits of a surgical intervention on a child unable to consent for himself clearly outweigh its risks, then it cannot be ethically or legally justified just on the basis of the parents' consent.3 If the College does not agree with Dr. Somerville's analysis, then perhaps you could explain why. Thank you for your time. I look forward to your response. Sincerely,
cc: Council Members
February 12, 2002 Dear Mr. H arrison: This is in follow-up to your letter of February 4th, 2002. I will only respond regarding a couple of points. First of all, the diversity in circumcision rates among different jurisdictions is well known. On its face, it clearly suggests significantly different attitudes by physicians, and more likely, significantly different attitudes among the general population. I have no reason to doubt the figures you have quoted, but I am uncertain as to their source. Since circumcision ceased to be an insured service, I am quite uncertain how accurate numbers regarding the procedure could be collected. It is possible the hospitals, where most of these would be performed, would keep track of such. Nevertheless, I would be uncertain as to the accuracy of either local numbers or the total for the province. That is a minor point, but worth noting, I believe. My only other comment concerns the concept of consent for interventions. It is, of course, simplistic to state that a parent or guardian cannot validly consent to any non-therapeutic intervention. This was the view that was put forward by the Supreme Court and since soundly criticized. Most examples are, of course, trivial. Nevertheless, if one takes the argument to the extreme, parents could not consent to children getting their ears pierced, having minor cosmetic procedures, or perhaps even getting a haircut. All would be considered batteries if one adhered to these principles blindly. On the other hand, and this is the argument most frequently heard in the United States, there are some respected opinions that neonatal circumcision is, in fact, of therapeutic benefit. That opinion is diminishing, but nevertheless, remains firmly held in some circles. From a regulatory point of view, then, the College is confronted with several factors. First of all, there is not an unequivocal medical opinion on this matter. This makes it very difficult to establish a clearly stated standard of care. One is left with the rather ambivalent comments which some bodies have adopted. Secondly, the law does not appear to completely preclude parents consenting to the procedure, even though some may feel that it does. For these reasons, this becomes not the kind of issue on which the Council of the College can clearly make a policy statement. As far as I know, few, if any, medical licensing authorities have gone that far on this matter. While that may more than likely happen at some point, it would not seem to be possible at this time. Thus, for the moment, we have an argument likely decided by decibels. Other than acknowledging that, I am not sure there is any likelihood of immediate change on that point. Yours sincerely,
August 13, 2002 Dear Mr. H arrison: This is in response to your letter of August 7th, 2002. First of all, this will confirm that we were unaware of the comment from Saskatchewan. It is noted that they seem to have gone much further than either the Canadian Paediatric Society or the American Academy of Pediatrics on this matter. Hence, I do not anticipate any significant change in our College's view of this. Having said that, it would seem reasonable to present this matter to our Council, and possibly to the membership at large to elicit some opinions. If there is any change on this view, I will advise you. Yours sincerely, [signed] Ed Schollenberg, MD, LLB, FRCPC
November 1, 2004 Dear Dr. Schollenberg: Re: Infant Male Circumcision I am writing to make the College aware of a guideline on the above procedure released earlier this year by the College of Physicians and Surgeons of British Columbia. This guideline, which is available on the CPSBC Web site, is aimed at discouraging non-therapeutic male circumcision. A few excerpts:
An anatomical study carried out by Dr. John R. Taylor at the University of Manitoba found that circumcision "ablates junctional mucosa which appears to be an important component of the overall sensory mechanism of the human penis." Removing healthy body parts from an incapable patient presents ethical and legal difficulties. The common law right to bodily integrity is deeply entrenched in our legal system. In a New Brunswick case involving the taking of hair samples and teeth impressions from a murder suspect under threat of force, the Supreme Court of Canada ruled that "any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy." Non-therapeutic surgery on female genitalia is expressly prohibited by the Criminal Code. In previous correspondence, you indicated that newborn circumcision was a problem which would eventually go away by itself. However, statistics obtained from the N.B. Department of Health and Wellness show little change in circumcision practices in N.B. in over a decade. A total of 957 male infants were circumcised in N.B. hospitals in 1989/90, representing 18.9 percent of male births in that year. In 2001/02, the number of male infants circumcised in N.B. hospitals was 677, or 18.5 percent of male births, virtually the same proportion as that reported twelve years earlier. That seems like a high incidence for a surgical operation which is not recommended by the governing specialty college and which is performed on incapable patients. By contrast, only 61 neonatal circumcisions were performed in Nova Scotia hospitals in 2001/02, while Newfoundland and Labrador hospitals reported a grand total of 4 procedures. In light of the new information about circumcision, and the leadership being shown on this issue by Colleges in western provinces, will the CPSNB reconsider its decision not to provide guidance on circumcision of newborns? I would appreciate a response at your earliest convenience. Thank you for taking the time to consider this issue. Sincerely, [signed] D ennis H arrison
November 9, 2004 Dear Mr. H arrison: Re: Infant Male Circumcision This is in response to your letter of November 1st, 2004. This matter was recently reviewed by our Council. While the Council felt there were some useful ideas in the British Columbia guidelines, they felt it best to maintain our current position and follow the Canadian Paediatric Society guidelines. It is understood that these are under revision and, when such is made, likely this will precipitate a change. I trust this is satisfactory. Yours sincerely, [signed] Ed Schollenberg, MD, LLB, FRCPC
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