COLLEGE OF PHYSICIANS & SURGEONS
August 11, 1999
Dear Dr. Bhimji:
Thank you for your letter dated July 30, 1999. Your letter addresses a number of interesting and provocative issues.
I do not think we can provide the forms of assurance which you have asked for in your letter. Your requests amount to a form of "advanced ruling" on issues of considerable ethical complexity. Such issues can really only be addressed in the context of specific practice situations.
Courts routinely refuse to address important issues except in the context of a proper factual foundation. You refer to several court decisions relating to consent for procedures and the interests of children. There are many court decisions which state that constitutional questions will not be answered in the abstract. Such questions will only be answered in the context of a real issue where a complete factual foundation is provided for the decision.
I believe that I am in the position that the courts areI cannot answer the questions which you pose in the abstract. Such issues could only be addressed in the context of a real situation based upon a specific case which is a live issue before the Saskatchewan College of Physicians and Surgeons.
I have discussed your suggestion that s. 15 of the Charter has implications for s. 268 of the Criminal Code with our legal counsel. He does not agree with your assessment that s. 268 could be applied by extension to routine infant circumcision. Section 15, in his opinion, could not be used to criminalize behaviour not defined to be criminal by the Parliament of Canada.
November 10, 1999
Dear Mr. Sawkey:
Thank you for your letter of November 3, 1999.
I'm pleased to explain the response of the College of Physicians and Surgeons to the concerns raised initially in your letter of August 11, 1999 and reinforced in your letter of November 3, 1999.
Only the governing Council of the College of Physicians and Surgeons can set policies which pertain to the clinical practice of medicine. The governing Council of the College is a fifteen-member body that includes both elected practising physicians and non-physicians appointed by the Government of Saskatchewan. The Council meets bi-monthly.
Your letter of August 11, 1999 was promptly advanced to the attention of the governing Council of the College and was considered by the Council at its meeting on October 14-15, 1999.
The Council receives communications from many individuals and agencies expressing a preference that the Council develop an explicit policy on specific clinical practice issues. The Council must weigh the merits of each of these proposals and assign a particular priority to a policy development issue if the Council believes it has merit. Because of the burden of other policy issues currently on the Council's agenda, the Council has not yet assigned a priority to the issue of infant male circumcision.
Though there is no current College policy or regulation which explicitly prohibits male circumcision it's important to recognize that physicians do not function in a vacuum in respect to this issue. You have quite correctly noted that the medical literature in recent years has adopted a more critical approach to the practice of infant male circumcision. The literature more clearly defines the risks and benefits associated with this procedure. Doctors have an obligation to practise in accordance with the best available scientific evidence. They also have an obligation to ensure that patients are informed of current evidence in respect to the risk and benefits of any contemplated surgical procedure.
Where the decision-maker is a parent on behalf of a child, physicians have an obligation to ensure that parents are optimally informed about the implications of choices they make on behalf of their children. Although it may be accurate historically to say that decisions about infant male circumcision were driven inordinately by parent preference, I believe much is being done today to ensure that parental decision-making is better informed. Finally, there is no obligation cast upon physicians to perform circumcision on an infant if the physician believes that it is not a surgically indicated procedure, any more than there is an obligation on physicians to honour the request for surgery on adults which they do not regard as medically indicated.
While the Council has not yet assigned a specific priority to the policy issue which you have raised to its attention I can assure you that it has not been simply swept aside. I had a mistaken understanding that our receipt of your letter of August 11, 1999 had been acknowledged and I take full responsibility for the fact that it was not. I apologize for that oversight and want to thank you for taking the time to bring your concerns to the Council's attention.
cc: Dr. P. E. Frangou
November 30, 1999
Dear Dr. Kendel:
Thank you for your letter of November 10th.
In my letter of August 11th, I asked specific questions relating to the ethical, legal, and human rights implications of neonatal circumcision. I note these questions have been left unanswered, though they concern matters that come well within the purview of the College.
You write that doctors must practise in accordance with the best available scientific evidence, and that they must ensure patients are fully informed with respect to the risks and benefits of any contemplated surgical procedure. You fail to mention, however, that doctors also have an obligation to respect the rights of incompetent persons. Just because infants are incompetent does not mean they have no rights. All persons have a basic human right to be free of surgery that is not medically required. Anyone who thinks a doctor may remove normal body parts from an incompetent person solely to satisfy that person's next of kin does not understand the nature of the doctor-patient relationship.
Removing one testicle from a newborn male will reduce his chances of getting testicular cancer by 50 percent. Removing his breasts will eliminate the possibility that he will develop male breast cancer. If prevention of disease is insufficient justification for removing testicles or breasts, then it is insufficient justification for removing the prepuce. The latter structure has been present in primates for at least 65 million years, and has been described in the medical literature as specialized, specific erogenous tissue necessary for normal sexual function.
You seem to take for granted that a physician may circumcise a healthy newborn boy if requested to do so by the parents. Yet when I asked in my letter of August 11th if the College believes parents have the legal authority to consent to invasive, non-therapeutic surgical interventions being performed on their children, I received no response. Nor did I receive a response when I inquired if the College could provide assurance that it is ethical for physicians to excise normal tissue from non-consenting persons for non-therapeutic purposes.
Neonatal circumcision raises very basic issues in regard to consent for procedures. I cannot understand why the Council has not yet "assigned a priority" to resolving such fundamental issues.
I feel my queries are important because they go to the heart of the ethical practice of medicine. As a citizen and a consumer of medical services, I wish to assure myself that medical services delivered in Saskatchewan conform to the highest ethical standards. I believe the College has a duty to respond to my concerns in an appropriate manner.
Accordingly, I would like to put the following questions to the College once again:
January 6, 2000
Dear Dr. Kendel:
Thank you for your letter of August 11, 1999 in response to my inquiry regarding circumcision. I can well appreciate your position on what may amount to "advance rulings" on events that are not actually before the College and therefore shall not pursue further responses regarding abstract issues. However, there are a number of questions that were not responded to in your letter that are neither abstract nor asking for a form of advanced ruling. As such I am resubmitting them to you for response.
With respect to the last paragraph of your letter, you indicated that the College's legal counsel felt that Section 15 could not be used to criminalize behaviour not defined to be criminal by Parliament. Perhaps counsel could advise if non-therapeutic infant male circumcision is already a criminal offence, albeit, rarely if ever enforced? I have enclosed letters and a scholarly paper by Dr. Margaret Somerville from McGill University to assist him in his deliberation.
The ethical issues raised by medical practices are clearly within the purview and jurisdiction of the College. I trust that in order to guide my fellow physicians and myself, the College will provide detailed responses to the questions posed regarding the ethics of non-therapeutic infant circumcision.
Please contact me at the address and telephone number provided should you require further information about my request.
January 19, 2000
Dear Dr. Bhimji:
Your letter dated January 6, 2000 has been provided to me for response.
From time to time, the College of Physicians and Surgeons establishes policies on issues of standards of medical practice or ethics. Many groups approach the College to establish specific policies on specific issues. From time to time, the College will consider all the requests for policies, prioritize them, and determine which of them will be the subject of a review in order to establish a College policy.
The issue of infant male circumcision is such an issue. The College will decide whether it is to be accorded sufficient priority that a policy will be developed on that issue.
Unless the College decides that it will establish a policy on infant circumcision, the College will have no further comment about the legality or ethics of such procedures.
February 16, 2000
Dear Mr. Sawkey:
Thank you for your letter of January 31, 2000.
At a meeting on February 11 & 12, 2000 the governing Council of the College of Physicians and Surgeons gave consideration to your expectation that the College of Physicians and Surgeons will develop an explicit policy on infant male circumcision.
The Council did decide to research this issue and generate a policy position. Several other policy issues were assigned a higher priority by the Council. The infant male circumcision issue will be addressed as soon as the College's financial and human resources allow adequate time to be devoted to this issue.
October 26, 2000
Dr. D. A. Kendel, Registrar
Dear Dr. Kendel,
I understand the College plans to formulate a policy on infant male circumcision, and I would like to offer my perspectives.
As you are undoubtedly aware, parents do not have the legal authority to consent to an invasive, irreversible surgical operation being performed on a minor child unless the operation is required for the child's mental or physical health.1 Neonatal circumcision does not meet this condition.2
Consequently parents, physicians, hospitals, medical personnel and others involved in infant male circumcision may be vulnerable to a lawsuit when the circumcised child reaches the age of majority and can, if desired, sue in a personal capacity. Indeed, insofar as neonatal circumcision is a wounding of a non-consenting person done without medical justification, it could even be prosecuted under existing assault provisions of the Criminal Code.
I trust these simple facts will be fully disclosed in the College's upcoming policy.
For your information, I enclose a copy of a paper entitled Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms, by Dr. Arif Bhimji. This paper was published recently in an electronic journal called HealthcareLaw.
I have done considerable research on infant male circumcision. My letters on this subject have been published in a number of journals including Lancet, JAMA, and The Journal of Law and Medicine. Do not hesitate to contact me if I can be of assistance.
May 3, 2001
Dr. D. A. Kendel, Registrar
Dear Dr. Kendel:
I have currently reviewed your letters to me dated November 10, 1999 and February 16, 2000 and I would appreciate an update with regards to the governing Council of the College of Physicians and Surgeons and a policy on infant male circumcision.
In your letter of November 10, 1999 you stated that there was no obligation upon physicians to perform circumcisions if the physician believes that it is not a surgically indicated procedure. I also note Saskatchewan statistics indicates that over 1700 infant males were circumcised in 2000. I have difficulty understanding the difference between what "the physician believes is surgically indicated" and what is in fact "surgically indicated". I really can't believe that in Saskatchewan 1700+ (not covered under the health plan) circumcisions were performed because there was any medical indication for them. Were they not routine circumcisions requested by parents? Am I correct in this assumption?
I would appreciate a clarification with regards to the College of Physicians and Surgeons of Saskatchewan with regards to my concerns and would appreciate your views with regards to the following questions.
Thank you for taking time to consider these questions and for taking time to respond to them.
May 10, 2001
Dear Mr. Sawkey:
We acknowledge receipt of your letter of May 3, 2001.
The College can only speak as a corporate entity if there has been some policy established on a particular issue or if the Code of Ethics or the College Bylaws provide specific direction on an issue.
None of that has occurred with respect to the two issues raised in your letter of May 3rd.
I cannot therefore provide you with a corporate position for the College with respect to the two questions you have posed.
June 11, 2001
Dear Mr. Salte:
Thank you for your letter of May 10, 2001. If I understand you correctly, you are saying that the College cannot answer the questions I asked in my letter of May 3rd because the questions concern matters on which the College has not developed a policy.
I find this response unacceptable because my questions pertain to certain basic principles governing medical practice. I do not see how the College could possibly discharge its duties without being able to interpret and apply these principles.
College Bylaw 44(1), pursuant to the Medical Profession Act, 1981, stipulates that
no person who is registered under the Act shall contravene or fail to comply with the Code of Ethics.Therefore the College ought to be capable of determining whether or not a particular practice is ethical.
Accordingly, I am resubmitting the following question for a response:
Can the College provide assurance that it is ethical for a physician to excise normal tissue from a non-consenting person for non-therapeutic purposes?If I have not received a response by July 31, 2001, then I intend to pursue this matter further with The Honourable Chris Axworthy, Q.C., Minister of Justice. Under section 87 of the Medical Profession Act, the Minister of Justice may direct the College to provide "all information and particulars relating to the College that may be required or requested."
Thank you for taking the time to consider this question and for taking the time to respond.
June 19, 2001
Dear Mr. Sawkey:
Thank you for your letter dated June 11, 2001.
There is nothing that can be added to our previous correspondence.
You are welcome to contact the Minister of Justice to discuss your concerns.
January 18, 2002
Dr. D. A. Kendel Registrar
Dear Dr. Kendel:
I am writing to inquire about the standard of practice in Saskatchewan 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 Saskatchewan and Nova Scotia are presented below for purposes of comparison. The data were supplied by the provincial ministries of health, and reflect newborn circumcisions performed in hospitals.
Based on the above data, the incidence of infant male circumcision is 13 to 18 times higher in Saskatchewan than in Nova Scotia. The gap between Saskatchewan and Newfoundland is even wider:
For the period 1992/93 to 1994/95 (I do not have more recent data for Newfoundland in my possession), the incidence of infant male circumcision appears to have been 40 to 60 times higher in Saskatchewan than in Newfoundland and Labrador. Is this not a surprising degree of variability in a paediatric surgical intervention? Should physicians in different provinces not be following the same rules for operating on infants?
Routine infant circumcision is not an insured service in any of the above provinces, having been de-insured in Newfoundland and Labrador on May 1, 1995, in Saskatchewan on August 1, 1996, 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 relatively high use of this surgical procedure in Saskatchewan perhaps indicate that Saskatchewan physicians are not as up-to-date on the latest literature and guidelines on circumcision as physicians in other provinces?
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 disclosewithout being askedall 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:
D ennis H arrison
January 29, 2002
Dear Mr. H arrison:
I'm writing in response to your letter of January 18, 2002.
I've forwarded your letter to the governing Council of the College of Physicians and Surgeons with a recommendation that the Council consider your letter at its next meeting, which is scheduled for February 15 & 16, 2002. I expect to be in further communication with you following that meeting.
You made reference to letters on this subject that you've submitted and had published in the Lancet, the Journal of the American Medical Association, and the Journal of Law and Medicine. I would appreciate it if you would provide to me copies of those letters so I might include the letters in the resource materials for the Council meeting on February 15 & 16, 2002.
February 20, 2002
Dear Mr. H arrison:
As I advised in my letter of January 29th, your letter of January 18, 2002 was considered by the governing Council of the College of Physicians and Surgeons at its meeting on February 15 & 16, 2002. I'm writing to advise you of the outcome from the Council's deliberations.
The Council does concur with and support the position of the Canadian Paediatric Society (CPS) that circumcision of newborns should not be routinely performed.
The Council is very concerned that the incidence of newborn circumcision in Saskatchewan remains very high compared to that in some other Canadian jurisdictions.
The Council has directed the Registrar's office to initiate a professional educational strategy to ensure that
I should however clarify that the Council is responding to this issue on the principle that the high incidence of infant male circumcision in Saskatchewan does not constitute good medical practice as it is not well aligned with the most credible research on this issue. The Council was less convinced of the merit of the legal arguments contained in your letter. A legal opinion obtained by the Council yielded an interpretation of the court decision cited in your letter, which is at variance with your interpretation.
Notwithstanding our differential understanding of the law on this issue, we do share your concern about the high incidence of infant male circumcision in Saskatchewan and will be taking a number of steps to bring practices in better alignment with current research evidence.
D.A. Kendel, M.D., Registrar
March 12, 2002
Dear Dr. Kendel:
It is my understanding that the College has recently issued an advisory memorandum to physicians regarding circumcision. I believe the memo was issued in late February but am reluctant to accept the document as genuine given that it is posted on the Internet. I am writing to request that a copy of the memo be faxed to me and that an original copy be sent to me at the address provided below.
Based on the information available to me at present, assuming it is true, I would like to commend the College on the position it has articulated with respect to this matter. I would like to have a better understanding as to how this position was arrived at. As you will recall we have previously exchanged some correspondence on this matter over the past couple of years.
The last issue that remains is one that I had addressed in earlier correspondence. I had specifically asked for the College's position on the ethics of performing this non-therapeutic procedure on non-consenting infants. In reading the copy of the memo that is being circulated on the Internet, it appears that the College has expressed concern regarding the procedure including the issues of consent and legal liability. Furthermore, there is strong wording regarding a physician carrying out the procedure. To me these imply that the College may have greater concern regarding this procedure than it is articulating even in the memo. Could you please advise if the College is now able to provide more information on its position regarding the ethics of this procedure?
Thank you, in advance, for your consideration of my request. Please contact me at the number provided below if you require further information or clarification.
Arif Bhimji MD, MBA