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Service, not Servitude
Legal Commentary

Questions and Answers

Re: Joint intervention in Carter v. Canada

Supreme Court of Canada,
15 October, 2014

Sean Murphy*

Introduction:

In June, 2012, a British Columbia Supreme Court Justice struck down Canada's absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. The decision pertained only to cases of physician-assisted suicide or homicide.  The ruling was overturned in the Court of Appeal of British Columbia in a 2/1 decision. The plaintiffs appealed to the Supreme Court of Canada.

The Catholic Civil Rights League, Faith and Freedom Alliance and the Protection of Conscience Project were jointly granted intervener status in Carter by the Supreme Court of Canada.  The joint factum voices concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care wor voiced concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care workers who object to the procedures for reasons of conscience.


Questions

1. Why do you use the term "killing" instead of the term chosen by the Canadian Medical Association (medical aid in dying)? [Answer]

2.  Why do you make the distinctions between justification, authorization and an obligation to kill?  [Answer]

3.  Why do you emphasize the nature of an obligation to kill? [Answer]

4.  Why do you introduce the inflammatory comparison between physicians who provide euthanasia or assisted suicide and public executioners?  [Answer]

5.  Has someone actually suggested that objecting physicians should have to provide or facilitate euthanasia and assisted suicide?  [Answer]

6.  How is an obligation to provide or at least facilitate euthanasia and assisted suicide implicit in the appellants claims?  [Answer]

7.  But the appellants' factum does not say that there is a right to euthanasia or assisted suicide from any physician, but only from "a physician who is satisfied it is appropriate treatment in the circumstances."  So an objecting physician would not be made to kill patients or help them commit suicide.  [Answer]

8.  What evidence did the appellants introduce at trial that suggests physicians unwilling to kill patients should be obliged to refer them to someone who will?  [Answer]

9.  If a physician refuses to provide treatment that a patient wants, and won't help the patient get it elsewhere, isn't that abandonment?  [Answer]

10.  What is the problem with requiring a physician who refuses to kill a patient or assist the patient with suicide to refer the patient to someone who will?  That is what the Royal Society experts and the Quebec National Assembly Select Committee recommended.  [Answer]

11.  Is there any evidence that physicians who, for reasons of conscience, refuse to provide or refer for euthanasia or assisted suicide will be discriminated against or disadvantaged?  [Answer]

12.  Why do you say that the autonomy of the physician should be given priority over the autonomy of the patient? [Answer]

13.  If dependency and interdependency are more fundamental than autonomy, does it not follow that the dependency of patients on physicians justifies a requirement that physicians provide or facilitate assisted suicide or euthanasia? [Answer]


Answers

1.  Why do you use the term "killing" instead of the term chosen by the Canadian Medical Association (medical aid in dying)?

  • "The term killing does not necessarily entail a wrongful act or a crime."1
  • The CMA term includes both euthanasia and physician assisted suicide, and both euthanasia and physician assisted suicide mean the killing of a patient.2
  • That "medical aid in dying" means killing is illustrated in transcripts of testimony concerning the Quebec euthanasia law.  The statute uses the term 'medical aid in dying,' but Mme. Véronique Hivon, who introduced the bill, acknowledged that "medical aid in dying" qualifies as homicide, even though she denied that it amounts to euthanasia.3 
    • Similarly, the Collège des médecins du Québec agreed that 'medical aid in dying' involves "an act of intentionally causing the death of a person."4
    • Lawyer Stéphanie Vallée, now Quebec Minister of Justice, noted that 'medical aid in dying'  "is really aimed at . . . death."5 
    • Gloria Jeliu, representing the Observatory for Aging and Society, which did not take a position for or against euthanasia, cautioned that those who want "medical help to die" must understand "it is a lethal injection and is extremely fast. . .".6 
    • Yves Bolduc, a physician and former Quebec Minister of Health, was disturbed by frequent references to killing during committee hearings, saying, "We are not in medicine to kill."7 Nonetheless, he described 'medical aid in dying' as administering "a big dose of morphine or barbiturate, or curare to kill the person in the space of five minutes."8
  • From the perspective of those who object to euthanasia and assisted suicide for reasons of conscience, the term "killing" keeps the moral/ethical issue that is of concern to them front and centre.  This is especially important because terms like 'medical aid in dying' tend to obscure the issue and encourage the pretence that a law permitting the procedure is morally neutral.

2.  Why do you make the distinctions between justification, authorization and an obligation to kill? 

  • The distinctions are those made by the law. The law has always acknowledged that killing someone is a grave and exceptional matter, and the distinctions illustrate the care taken in establishing the conditions for making an exception to the general rule against killing.

3.  Why do you emphasize the nature of an obligation to kill?

  • It is not clear that the nature of that obligation is sufficiently appreciated by those who propose that physicians or others should, in defined circumstances, have an obligation to kill patients or assist in killing them.
  • Many of those who object to assisted suicide and euthanasia for reasons of conscience believe that an obligation to kill is incompatible with the ethical practice of medicine.

4.  Why do you introduce the inflammatory comparison between physicians who provide euthanasia or assisted suicide and public executioners?

  • The comparison is not between physicians who provide euthanasia and executioners, but between the legal obligations of those required to participate in such practices.

5.  Has someone actually suggested that objecting physicians should have to provide or facilitate euthanasia and assisted suicide?

  • Yes. 
    • 2003:  Two universities in Belgium joined the Flemish Association and General to assert that physicians unwilling to provide euthanasis shou2003:  Two universities in Belgium joined the Flemish Association and General to assert that physicians unwilling to provide euthanasia should help patients find someone willing to provide the service.9
    • 2011:  A panel of the Royal Society of Canada recommended legalization of assisted suicide/euthanasia, and that physicians who refuse to kill patients themselves or assist in suicide should be forced to help patients find someone who will.10
    • 2012:  A legislative committee in the province of Quebec recommended legalization of euthanasia, with a requirement that physicians who refuse to kill patients themselves or assist in suicide should be forced to help patients find someone who will.11
    • 2013:  A group of academics, including prominent euthanasia activists, supported by grants from the federal government, have proposed a Model Conscientious Objection Policy for Canadian physicians. Should euthanasia or assisted suicide be permitted, their policy would require physicians unwilling to kill patients themselves to "make a referral to another health care provider who is willing and able to accept the patient and provide the service."12 Moreover, should the delay involved jeopardize the patient's "well-being," the model insists that physicians personally provide "legally permissible and publicly funded" services (i.e., kill the patient or assist in suicide), "even in circumstances where the provision of health services conflicts with physicians' deeply held and considered moral or religious beliefs."13

6.  How is an obligation to provide or at least facilitate euthanasia and assisted suicide implicit in the appellants claims?

  • A claim of an authentic 'right' to physician assisted suicide euthanasia would imply an obligation on the part of some physician to kill a patient or help the patient kill himself.
  • In their notice of claim, the plaintiffs assert a "legal right to die peacefully, at the time of her choosing," refer to a purported "constitutional right to physician-assisted dying," and claim that the law results "in a deprivation of the s. 7 rights of individuals to
    life, liberty and security of the person," depriving them of "the right and ability to choose to die using physician-assisted dying services."14
  • In their factum on appeal to the Supreme Court of Canada, they assert the current laws "deny the suffering their rights of life, liberty and security of the person," refer to "the right to bring an end to suffering at the point it becomes intolerable," assert that current laws "violate . . . constitutional rights to life, liberty, security of the person and equality," and claim tha patients have a "right to seek to have PAD provided to them by a physician who is satisfied it is appropriate treatment in the circumstances." 15

7.  But the appellants' factum does not say that there is a right to euthanasia or assisted suicide from any physician, but only from "a physician who is satisfied it is appropriate treatment in the circumstances."  So an objecting physician would not be made to kill patients or help them commit suicide.

  • This is not unusual. Most euthanasia/assisted suicide supporters do not insist that objecting physicians personally kill patients or assist in suicide.16
  • Instead, they demand that objectors facilitate or participate indirectly in euthanasia or assisted suicide by referral or other means.17
  • Professor Jocelyn Downie advocates compulsory referral for all morally contested procedures, including assisted suicide and euthanasia.18  She instructed the appellant's expert witnesses at trial.19
  • The appellants' factum and evidence they introduced at trial supports the view that a physician unwilling to kill a patient or assist in suicide should be forced to direct the patient to someone who will.

8.  What evidence did the appellants introduce at trial that suggests physicians unwilling to kill patients should be obliged to do so, or at least to refer them to someone who will?

  • The appellant introduced a report of a Royal Society of Canada stating that objecting physicians should be forced to refer patients to colleagues willing to provide assisted suicide or euthanasia.20
  •  Their witness, Professor Margaret Battin, implied that a physician's refusal to provide assisted suicide or euthanasia would amount to unethical abandonment of patients.21

9.  But if a physician refuses to provide treatment that a patient wants, and won't help the patient get it elsewhere, isn't that abandonment? 

  • Not in cases in which the physician refuses for medical, moral or ethical reasons, all of which are usually involved in such a decision. 
  • In such cases, the patient seeks A, which the physician finds inadvisable or unacceptable, while the physician offers B, which the patient finds unacceptable. 
  • The physician is not abandoning the patient, but offering advice or treatment the patient does not want.   For example:
    • Patient seeks euthanasia
      • Physician declines, offering palliative care, psychological and emotional care, etc.
    • Patient with gall stones seeks surgical removal of gall bladder
      • Physician declines, but offers advice on symptom management
  • In both cases, the patient is free to find another physician, and a College of Physicians can help him do so.
  • To characterize these situations as "abandonment" would be like accusing a lawyer of abandonment if he withdraws from a case because the client will not accept his advice.

10.  What is the problem with requiring a physician who refuses to kill a patient or assist the patient with suicide to refer the patient to someone who will?  That is what the Royal Society experts and the Quebec National Assembly Select Committee recommended.

  • The question was answered by the President of the Collège des médecins du Québec:
    • [I]f you have a conscientious objection and it is you who must undertake to find someone who will do it, at this time, your conscientious objection is [nullified]. It is as if you did it anyway. / [Original French] Parce que, si on a une objection de conscience puis c'est nous qui doive faire la démarche pour trouver la personne qui va le faire, à ce moment-là, notre objection de conscience ne s'applique plus.  C'est comme si on le faisait quand même.22
  • This ethical or moral concept is reflected in law.  Judges and lawyers know that one can be convicted of a criminal offence not just by committing the crime itself, but by helping someone to commit it.

11.  Is there any evidence that physicians who, for reasons of conscience, refuse to provide or refer for euthanasia or assisted suicide will be discriminated against or disadvantaged? 

  • Yes. 
    • There are continuing efforts to force objecting physicians to prescribe and refer for contraception and abortion, obvious animosity displayed toward those who refuse to do so, and public denigration of their motives and competence.23
    • Nurses and others have been dismissed or otherwise disadvanataged or discriminated against for refusing to assist with abortion.24
    • At least one major maternity hospital in Canada refuses to hire qualified maternity nurses who are unwilling to assist in abortions for reasons of conscience, including abortions after 22 weeks gestation.25
    • Regulatory authorities are being urged to suppress freedom of conscience among physicians, and objecting physicians threatened with harassment and prosecution by human rights tribunals.26
    • Arguments used to support these attacks27 are also advanced to force unwilling physicians to provide or facilitiate euthanasia and assisted suicide.28

12.  Why do you say that the autonomy of the physician should be given priority over the autonomy of the patient?

  • We do not say that the autonomy of the physician should be given priorty.
  • We do say that the claims of autonomy by patients and physicians do not help to resolve a conflict that arises when, for reasons of conscience, a physician refuses to kill a patient or assist in suicide.

13.  If dependency and interdependency are more fundamental than autonomy, does it not follow that the dependency of patients on physicians justifies a requirement that physicians provide or facilitate assisted suicide or euthanasia?

  • If dependency/interdependency is recognized as a primary ethical principle, one need not conclude that one must provide assisted suicide or euthanasia.
  •  For example,  Judaism, Christianity, and Islam accept the centrality of dependency and interdependency, but do not conclude from this that assisted suicide or euthanasia are morally acceptable.

Notes:

1.   "The term killing does not necessarily entail a wrongful act or a crime, and the rule 'Do not kill' is not an absolute rule. Standard justifications of killing, such as killing in self-defense, killing to rescue a person endangered by another persons' wrongful acts, and killing by misadventure (accidental, non-negligent killing while engaged in a lawful act) prevent us from prejudging an action as wrong merely because it is killing." Beauchamp TL, Childress JF, Principles of Biomedical Ethics (7th ed.) New York: Oxford University Press, 2013, p. 176

2.  In the Supreme Court of Canada (on appeal from the Court of Appeal of British Columbia) between Lee Carter, Hollis Johnson, Dr. William Schoichet, the British Columbia Civil Liberties Association and Gloria Taylor, Appellants (Respondents/Cross-Appellants) and Attorney General of Canada, Respondent (Appellant/Cross-Respondent) and Attorney General of British Columbia, Respondent (Appellant) and Attorney General of Ontario, Attorney General of British Columbia and Attorney General of Quebec, Interveners.(Hereinafter "In the SCC on appeal from the BCCA"), Factum of the Intervener, The Canadian Medical Association, para. 1-3, 5, 16-17.

3.  Consultations & hearings on Quebec Bill 52 (hereinafter "Consultations"), Wednesday, 25 September 2013 - Vol. 43 no. 38: Living with Dignity (Nicolas Steenhout, Dr. Marc Beauchamp, Michel Racicot), T#039 

4.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Collège des médecins (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#013

5.  Consultations, Thursday 19 September 2013 - Vol. 43 no. 36:Quebec Bar (Johanne Brodeur, Marc Sauvé, Michel Doyon), T#060

6.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40: Observatory for Aging and Society (André Ledoux, Gloria Jeliu, Denise Destrempes, Claude Tessier), T#117

7.  Consultations, Wednesday, 9 October 2013 - Vol. 43 N° 45: Professor Margaret Somerville, T#059

8.  Consultations, Tuesday, 8 October 2013 - Vol. 43 No. 44: Institute for Care Planning (Danielle Chalifoux, Denise Boulet, Louise Boyd), T#113

9.  Belgian Association of General Practitioners, Academic Centre for General Practice at the Catholic University of Leuven, Department of General Practice at the University of Ghent, Policy Statement on End of Life Decisions and Euthanasia (Standpunt over medische beslissingen rond het levenseinde en euthanasie) 4 December, 2003, Proposition 6;

10.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62, 101 (Accessed 2014-02-23)

11.  National Assembly of Quebec, Select Committee Dying with Dignity Report (March, 2012) Recommendation 13. (Accessed 2014-10-08)

12.  Downie J, McLeod C, Shaw J. "Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.3

13.  Downie J, McLeod C, Shaw J. "Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.4 (http://www.consciencelaws.org/drafts/2013-downie-mcLeod-shaw.pdf)

14.  In the BCSC, Amended Notice of Civil Claim, Part 1, para. 51, 55, 64(c); Part 3, para. 9-11, 18

15.  In the SCC on appeal from the BCCA, Factum of the Appellants (13 May, 2014) para. 4, 123, 162-164  (Accessed 2014-08-18)

16.  Speaking for the Quebec Association for the Right to Die with Dignity Association, Hélène Bolduc told a Quebec legislative committee that the Association respected "the freedom of the professional" and never had any intention of forcing physicians to provide euthanasia, as "there is not a doctor who would do it well if, in addition, it was not his inclination to do so, and it is not to anyone's advantage to give this impression." Consultations & hearings on Quebec Bill 52, Wednesday, 25 September 2013 - Vol. 43 no. 38: Quebec Association for the Right to Die with Dignity (Hélène Bolduc, Dr. Marcel Boisvert, Dr. Georges L'Espérance), T#107

17.  Belgian Association of General Practitioners, Academic Centre for General Practice at the Catholic University of Leuven, Department of General Practice at the University of Ghent, Policy Statement on End of Life Decisions and Euthanasia (Standpunt over medische beslissingen rond het levenseinde en euthanasie) 4 December, 2003, Proposition 6; Royal Dutch Medical Society (KNMG) Position Paper, The Role of the Physician in the Voluntary Termination of Life (23 June, 2011), p. 40.

18.  Rodgers S. Downie J. "Abortion: ensuring access." CMAJ July 4, 2006 vol. 175 no. 1 (Accessed 2014-02-14); Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62, 101;  Downie J, McLeod C, Shaw J. "Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.3

19.  Carter v. Canada, para. 124

20.    Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62, 69, 101

21.   "[N]on-abandonment, is more precisely a norm of practice for physicians, and follows from the two philosophical principles. Physicians are under an ethical obligation to try to respond to autonomous requests from their patients, especially when those requests revolve around extremes of suffering in those who are otherwise dying. . . The nature of the patient’s suffering and why it is intolerable to the patient must also be understood by the physician, who then is obliged to try to respond as a matter of mercy and in fulfilment of his or her commitment not to abandon the dying patient."  Carter v. Canada, para. 239-240.

22.  Consultations: Tuesday 17 September 2013 - Vol. 43 no. 34: Collèe des médecins du Québec, (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#154

23.  Rodgers S. Downie J. "Abortion: ensuring access." CMAJ July 4, 2006 vol. 175 no. 1 (Accessed 2014-02-14);  Murphy S. "NO MORE CHRISTIAN DOCTORS." Protection of Conscience Project, March, 2014;  Fiala C, Arthur JH.  "'Dishonourable disobedience' - Why refusal to treat in reproductive healthcare is not conscientious objection." Woman - Psychosomatic Gynaecology and Obstetrics, 29 March, 2014.  (Accessed 2014-10-11) Lakritz N. "Doctors’ ability to say no must be limited."  Calgary Herald, 2 July, 2014 (Accessed 2014-10-11); Cohn MR. "Doctors who play God can be pastors, not physicians: Cohn." Toronto Star, 29 July, 2014 (Accessed 2014-07-29) 

24.  Murphy, S.  "Promises, promises: Canadian law reformers promise tolerance, freedom of conscience. What happens after the law is changed is another story." Protection of Conscience Project

25.  Confidential Protection of Conscience Project correspondence. The victim decided against legal recourse because he/she was concerned that it would prevent him/her from getting another job. He/she is now employed elsewhere, but remains concerned that his/her employment or professional opportunities may be adversely affected if particulars are made public.

26.  Downie J, McLeod C, Shaw J. "Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.3; Protection of Conscience Project Submissions to the College of Physicians and Surgeons of Ontario Re: Physicians and the Ontario Human Rights Code. (2008, 2014)

27.  Downie J, McLeod C, Shaw J. "Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013, para. 5.3

28.  Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 62, 69, 101  (Accessed 2014-02-23)

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