Redefining the practice of medicine
Winks and nods and euthanasia in Quebec
Bill 52: An Act respecting end-of-life care (June, 2013)
Note: Bill 52, a bill
intended to legalize euthanasia by physicians in the province of Quebec, was
introduced by the Parti Quebecois government and debated in the Quebec
National Assembly in 2013. It failed to pass before an election was
called, and the legislature was dissolved. While the Parti Quebecois
was defeated and replaced by the Liberal Party of Quebec, in 2014 the
Liberal party reintroduced Bill 52 as it stood when the legislature was
dissolved. The bill passed on 5 June, 2014.
The original and final
texts of the bill are available in parallel columns
This commentary was
based on the text of the bill as originally introduced in 2013.
A new commentary
reviews the text of the new law enacted in 2014.
"Medical aid in dying" in Bill 52 (An Act respecting end-of-life care)
will be transformed into euthanasia using the structures and powers
established by other Quebec statutes governing the delivery of health care.
These laws have established a multi-layered and overlapping bureaucracy. If
Bill 52 passes, health care providers and others who want no part of
euthanasia will find their working environments increasingly controlled by a
MAD matrix functioning within this system.
The Minister for Social Services and Youth Protection may issue "policy
directions" about euthanasia. Health care in every region in Quebec is
delivered under the direction of a regional health and social service
agency. In addition, local health and social services networks have been
established. These will be expected to provide or facilitate euthanasia.
Almost all local community service centres, hospital centres or
residential and long-term care centres will be required to offer euthanasia,
as will rehabilitation centres, which serve developmentally disabled
patients. Palliative care hospices and hospitals are not required to do so.
Physicians associated with private health care facilities must not provide
euthanasia unless authorized by a local health authority.
Policies, standards, codes of ethics, protocols, guidelines, directives,
etc. can be used to normalize euthanasia, and disciplinary and complaints
procedures can be used to force participation in it. Local complaints
commissioners, the Health and Social Services Ombudsman and syndics
(investigators) for professional orders could create considerable difficulty
for objecting physicians.
Under Quebec's Professional Code, the Physicians' Alliance for
Total Refusal of Euthanasia, the Euthanasia Prevention Coalition and other
groups that oppose euthanasia might face substantial fines if they persist
in encouraging or advising physicians not to participate in the procedure.
Physicians may refuse to provide euthanasia if the patient is legally
ineligible, and for other reasons, including conscientious objection.
Section 30 of the bill should be amended to avoid unnecessary conflict with
objecting physicians. Section 44, the provision specific to conscientious
objection, is inadequate. Further, patients may lodge complaints against
physicians who refuse to provide or facilitate euthanasia with institutions
and the regulatory authority, regardless of the reasons for refusal.
Despite the promise of immunity, some Quebec physicians may be unwilling
to provide euthanasia while the criminal law stands, even if they do not
object to the procedure. Similar reluctance might arise in regional health
agencies, councils of physicians or other entities responsible for issuing
MAD guidelines. Some might deliberately and obstinately interpret "medical
aid in dying" to exclude killing patients, on the ground that the Act does
not explicitly require or permit euthanasia, and the criminal law precludes
such an interpretation.
Finally, objecting physicians might be able to appeal to the Public
Protector, who is empowered to intervene "whenever he has reasonable cause
to believe that a person or group of persons has suffered or may very likely
suffer prejudice as the result of an act or omission of a public body."
The transformation of "medical aid in dying" in Bill 52 (An Act
respecting end-of-life care) into euthanasia is to be accomplished
using the structures and powers established by other Quebec statutes that
govern the delivery of health care in the province, notably the Act
Respecting Health Services and Social Services. This is the law that
provides the administrative framework for the delivery of health care and
the enforcement of health care policy. Other relevant statutes include the
Professional Code and the laws specific to each of the health care
professions. These laws have established a multi-layered and overlapping
bureaucracy of committees, councils, commissions, boards, directors,
examiners, coordinators, syndics and commissioners.
Appendix "A" identifies the key statutes and the health care structures
established by them relevant to the purposes of Bill 52.
describes the complaint and disciplinary procedures authorized by the
statutes that could be turned against health care workers who decline to
provide or facilitate euthanasia.
If Bill 52 passes, health care providers and others who want no part of
euthanasia will find their working environments increasingly controlled by a
MAD matrix functioning within this system, a prominent feature of which is
an emphasis on rights1 and the vindication of "user rights,"2 including a
purported "right" to "medical aid in dying" promised by Bill 52.3
The Minister for Social Services and Youth Protection is empowered to
issue "policy directions" that are to guide health and social service
agencies and institutions in providing end-of-life care, including
It remains to be seen if the ministerial directives will explicitly
authorize or require physicians to kill their patients, or if the Minister
will trust that winks and nods will be sufficient to get compliant agencies
and institutions to issue such instructions. In this regard, note that the
Collège des médecins du Québec, the regulator of
medical practice, already believes that euthanasia can be an acceptable
"medical act," consistent with a Code of Ethics requirement (i.e.,
that physicians ensure that "death occurs with dignity" and that
"appropriate support and relief" is provided to the patient5).
Health care in every region in Quebec is delivered under the direction of
a regional health and social service agency (Appendix A2). Bill 52 requires
every agency to establish general rules concerning access to end-of-life
care, including euthanasia, for all institutions and palliative care
hospices in its jurisdiction.6 The agencies must inform people living in
their regions of how to access end-of-life services, including euthanasia,
and provide information about "the rights and options of end-of-life
patients."7 In addition to regional health and social service agencies,
"local health and social services networks" have been established (Appendix
A5). These are intended to focus particularly on access to services, which,
in this case, means euthanasia.
Almost all institutions that operate local community service centres,
hospital centres or residential and long-term care centres8 are required to
offer end-of-life care that includes euthanasia,9 to establish clinical
programmes10 and policies concerning it,11 and to include reference to it in
their codes of ethics.12 This includes rehabilitation centres, described in
the Act Respecting Health and Social Services, which serve
developmentally disabled patients.13
It was noted above that almost all institutions will be required to offer
end-of-life care that includes euthanasia. There are three exceptions to the
Palliative care hospices may offer euthanasia, but are not required to do
so. Before admitting patients, they must explain what kind of end-of-life
care they offer.14 Similarly, hospitals that do not provide euthanasia when
the Act comes into force will not be required to do so; they must notify
patients of that before admitting them.15
Physicians associated with private health care facilities must not
provide euthanasia unless they are authorized to do so in a written
agreement with the local health authority (presumably the regional health
and social services agency).16
Obviously, every individual or group that is authorized to enact or
supervise adherence to policies or standards can become a MAD functionary,
using codes of ethics, protocols, guidelines, directives, etc. to normalize
euthanasia. Similarly, every disciplinary or complaints procedure (or the
threat of it) can be used to force participation in MAD services. However,
two elements of the MAD matrix warrant special notice.
First, regional and local complaints commissioners and the Health and
Social Services Ombudsman are all empowered to take action on their own
initiative to enforce "the rights of a user or group of users" (Appendices B3.3,
while syndics (investigators) for professional orders may lodge complaints
of professional misconduct without waiting for a complaint (Appendix B10.2). Any or
all of these individuals who are MAD advocates could create considerable
difficulty for physicians who are unwilling to participate in euthanasia.
Second, the Professional Code provides that anyone who
"knowingly helps or, by encouragement, advice or consent" leads a member to
violate the order's code of ethics can be fined not less than $1,500.00 and
not more than $20,000.00 for each day the violation continues. In the case
of an incorporated entity, the minimum and maximum fines are $3,000.00 to
$40,000.00 per day. (Appendix B10.3) As noted above, the Collège des médecins
du Québec even now believes that its Code of Ethics supports
euthanasia, and it seems likely that the Collège would become an
active MAD advocate should Bill 52 pass. Thus, the Physicians' Alliance for
Total Refusal of Euthanasia, the Euthanasia Prevention Coalition and other
groups that oppose euthanasia might face prosecution and substantial fines
if they persist in encouraging or advising physicians not to participate in
It is important identify problems that the Act poses for those
who object to euthanasia for reasons of conscience and suggest changes to
the Act to avoid those problems. In the event the suggestions are ignored,
it becomes necessary to consider how objecting health care workers might
respond to coercion by the government and state medical establishment. From
the limited perspective of protecting freedom of conscience, the goal is to
ensure that conscientious objectors to euthanasia will be able to continue
to work in health care without becoming complicit in what they consider to
be wrongdoing. (The goal reflects support for freedom of conscience, not
Since the focus of Bill 52 is on physicians, that will be the focus here,
even though other objecting health care workers will face similar problems.
Bill 52 envisages three circumstances in which physicians might refuse to
The first is a refusal based on the physician's assessment of a patient's
statutory eligibility. If, for example, the physician finds that the patient
is under 18, or not a Quebec resident, or not suffering from an incurable
illness, or not acting freely, the physician may not provide euthanasia, and
must inform the patient of the reasons for his decision.17 Nothing else is
required of the physician, but, as will be seen presently, the physician's
refusal is not necessarily the end of the story, though that is not apparent
from Bill 52.
The Bill also recognizes that a physician may refuse to provide
euthanasia for some other unspecified reason, though it does not suggest
what other reasons might exist. In this case, the physician is obliged to
notify the institutional director of professional services (Appendix A15) or
other person designated by the institutional executive director (Appendix
A14), and, if he has been given a MAD request form, forward it to that
person. The same rule applies to a physician practising in a private health
facility, who is required to notify the director of professional services or
other person designated by the executive director of the "local authority."
It is not clear if this means the regional health and social services agency
(Appendix A2) or a local health and social services network (Appendix A5).
The director of professional services (or designated person) must then find
another physician to act on the request.18
Physicians who are not opposed to euthanasia in principle may have
various reasons for refusing to provide the procedure for eligible patients.
For example, they may refuse because they believe that
- the drugs available are not suitable for the procedure;
- the institution lacks the privacy required for it;
- institutional rules concerning it are burdensome or otherwise
If the patient has refused to discuss the issue with family members, the
physician may be unwilling to risk the consequences of killing the patient
without their knowledge. Physicians concerned about the continuing
prohibition of euthanasia by the criminal law may be unwilling to kill
patients unless explicitly authorized to do so by statute; they may reject
policies, protocols or professional guidance as providing insufficient legal
In such cases, the requirement under Section 30 to notify the director of
professional services and forward the MAD request should not be problematic.
Since these physicians do not object to euthanasia and would be willing to
provide it in different circumstances, there is no reason for them to object
to facilitating it.
However, Section 30 would also apply to physicians who object to
euthanasia for reasons of conscience, and this may cause problems. For the
reasons explained below (Conscientious objection-Section 44), some objecting
physicians may be unwilling to forward the MAD request; some may even be
unwilling to notify the director of professional services. The simplest way
to avoid this problem (and everyone should be interested in avoiding it)
would be to amend the Bill by requiring the medical professional who
countersigns a MAD request to give it to a MAD coordinator appointed by the
institutional board of directors. Presumably, neither a professional who
signs a MAD request nor a MAD coordinator would object to euthanasia.
Should the Bill pass unamended, it appears that an objecting physician
could simply refuse to accept a written MAD request, in which case it seems
that there is no obligation to forward it.19 It might be possible to fulfil
the obligation to notify the director of professional services by doing so
in advance, making it clear that the physician will not accept any MAD
requests. Nonetheless, it would be preferable to amend the Bill in the way
Bill 52 states that it "does not limit the right of health professionals
to refuse, in accordance with their code of ethics, to provide or take part
in providing end-of-life care for reasons of conscience."20
There are four problems with this provision.
In the first place, it applies only to "health professionals." It does
not appear to apply to assistant nurses and others who work in health care
settings who might be expected to assist in killing patients or facilitate
it in some way. (Appendix A19.5)
Second, everything turns on what the Act means by "provide or take part."
If government (and a compliant medical establishment) intend this phrase to
refer only to direct involvement in killing patients - lethally injecting
the patient or preparing a toxic milkshake - it is unlikely to be
sufficient. After all, councils of physicians, dentists and pharmacists are
required by Bill 52 to establish local protocols for killing patients and
see that they are followed. It is not at all clear that this allowance for
conscientious objection applies to them.
The third problem is external to Bill 52. The Code of Ethics of
the Collège des médecins du Québec demands that physicians who are unwilling
to provide a service for reasons of conscience must "offer to help the
patient find another physician."21
The gloss provided by the Collège emphasizes the demand for active
assistance by the physician:
For example, a physician who is opposed to abortion or
contraception is free to limit these interventions in a manner that takes
into account his or her religious or moral convictions. However, the
physician must inform patients of such when they consult for these kinds of
professional services and assist them in finding the services requested.22
This kind of facilitation of morally contested procedures is often
rejected by conscientious objectors because they see it as making them
unacceptably complicit in wrongful conduct. Their position is not unusual.23
For example, within the context of physician involvement in killing, a
refusal to help find a physician willing to provide euthanasia is entirely
consistent with the position of the American Medical Association on
"participation" in capital punishment. Participation, according to the AMA
is any action "which would assist, supervise, or contribute to the ability
of another individual to directly cause the death of the condemned."24
Finally, the protection of conscience provision in Bill 52 offers no
protection against discrimination. For example, nothing in the Act prevents
boards of directors from refusing privileges to physicians who will not
participate in euthanasia.
Regardless of the reason for refusal, patients may respond by making a
standard request for a second opinion. However, a patient can also lodge a
complaint about physician refusal, even in the case of a refusal based on
statutory ineligibility. Further, the patient or his representative can seek
the assistance of the institutional user committee (Appendix A21) and make a
complaint about the physician to the institutional complaints commissioner
(Appendices A13, B3), who would forward it to the institutional medical
examiner for investigation (Appendix B3.2).
The medical examiner might investigate the complaint himself, or transmit
it to the institutional council of physicians, dentists and pharmacists for
investigation. (Appendix B4.1[b]) If the council concludes that discipline
is warranted, it would communicate its opinion to the complainant and the
institutional board of directors (Appendix B6), which can respond by
reprimanding the physician, changing his status, or withdrawing, suspending
or restricting his of privileges (Appendix B7.2).
If the institutional response does not satisfy a complainant, an appeal
lies to the Health and Social Services Ombudsman, who is entitled to
intervene (Appendix B9.3)
Alternatively (or simultaneously) a complaint of professional misconduct can
be made to the Collège des médecins du Québec, which, upon conviction, can
strike the physician from the register, suspend or restrict professional
activities, or levy substantial fines (Appendix B10.3).
Up to this point, discussion has been limited to what might be considered
predictable responses to the passage of An Act respecting end-of-life care.
However, the continuing prohibition of euthanasia under Canadian criminal
law and the lack of explicit statutory authorization to kill patients could
generate some anomalous responses.
Even if Bill 52 passes and some Quebec physicians are willing to provide
euthanasia, it does not follow that the promise of immunity from prosecution
by the Quebec government will be sufficient to convince all of the willing
physicians to do so. This has been noted in the discussion of refusals under
Section 30. Similar reluctance might arise in regional health agencies,
councils of physicians or other entities responsible for issuing MAD
A more radical response (that could include physicians who are willing to
provide euthanasia, but concerned about the criminal law) could conceivably
take the form of deliberately and obstinately interpreting "medical aid in
dying" to exclude killing patients, on the ground that the Act does not
explicitly require or permit euthanasia, and MAD cannot be understood to
include euthanasia because of the criminal law. This would not affect those
parts of the statute supporting improvements in palliative care. However, it
would completely subvert the sections that would otherwise require objectors
to provide or facilitate euthanasia. Objectors contemplating such an
approach should consult legal counsel in Quebec to determine whether or not
the strategy is sound and the likelihood of its success.
Finally, it may be possible for objecting physicians to appeal to the
Public Protector, who is empowered to intervene "whenever he has reasonable
cause to believe that a person or group of persons has suffered or may very
likely suffer prejudice as the result of an act or omission of a public
body, its chief executive officer, its members or a person holding an
office, employment or position accountable to the chief executive officer."25
The Public Protector investigates the complaint and can take action if the
(1) has not complied with the law;
(2) has acted in an unreasonable, unjust, arbitrary
or discriminatory manner;
(3) has failed in its or his duty or has been guilty
of misconduct or negligence;
(4) has committed an error of law or of fact; or,
(5) in the exercise of a discretionary power, has
acted for an unjust purpose, has been actuated by irrelevant motives or has
failed to give reasons for its or his discretionary act when it or he should
have done so.26
An Act Respecting Health Services and Social Services (R.S.Q. Chapter S-4.2)
(Hereinafter "Bill 52") Sections 2(8), 3(2), 4-28.
Bill 52, Sections 33, 40,49, 52, 64(4), 66, 72, 74, 76.7, 76.10,
76.11(4), etc. (Accessed 2013-06-18)
Bill 52, Section 5.
Bill 52, Section 20.
5. Collège des médecins du Québec,
Physicians, Appropriate Care and the Debate on Euthanasia: A Reflection.
(16 October, 2009) p. 2. For the Collège's view on the acceptability of
euthanasia, see p. 3 to 7.
Bill 52, Section 18.
Bill 52, Section 18.
Bill 52, Section 3(1).
Bill 52, Section 8.
Bill 52, Section 9.
Bill 52, Section 10.
Bill 52, Section 11.
Bill 52, Sections 86-87.
Bill 52, Section 14.
Bill 52, Section 65.
Bill 52, Section 17.
Bill 52, Section 29.
Bill 52, Section 30.
Bill 52, Section 30, states that the
refusing physician must "forward the request form given to the
physician, if such is the case. . ."
(emphasis added)(Accessed 2013-06-22)
Bill 52, Section 44.
21. Collège des médecins du Québec,
Ethics of Physicians, para. 24
22. Collège des médecins du Québec,
Ethical and Organizational Aspects of Medical Practice in Québec.
ALDO-Québec, 2010 Edition, p. 156 (Accessed 2013-06-23)
23. Murphy, Sean,
The Problem of Complicity;
Referral: A False
Compromise. Protection of Conscience Project.
AMA Policy E-2.06 Capital Punishment
Public Protector Act (R.S.Q. c. C-P32),
Public Protector Act (R.S.Q. c. C-P32),