A "uniquely Canadian approach" to freedom of conscience
Provincial-Territorial Experts recommend coercion to
ensure delivery of euthanasia and assisted suicide
Appendix "C"
Expert recommendations re: freedom of conscience and religion
C1. Institutions
C1.1 Meaning of "institution"
C1.2 "Institutions" must allow or arrange
for euthanasia or assisted
suicide
C1.3 All
"institutions" must disclose position on euthanasia and
assisted suicide
C1.4 "Institutions" must not
require patients/residents to give up "the right to access," interfere
with employees providing eutanasia or assisted suicide elsewhere
C2. Objecting physicians/health care providers
C2.1 Objecting physicians must provide information on "all
options"
C2.2 Objecting physicians must disclose views on
euthanasia and assisted suicide
C2.3 Objecting physicians must not discriminate
C2.4 Objecting physicians must act as critical enablers
C2.4.1
Three alternatives
C2.4.2
Referral
C2.4.3
Direct transfer of care
C2.4.4
Transfer to "a publicly-funded system" or
"third party"
C2.4.5
The Experts' "system/third party" and the
CMA's "central service"
C1. Institutions
C1.1 Meaning of "institution"
C1.1.1 The Experts want all health care institutions to become "critical
enablers" of euthanasia and assisted suicide,1
but they do not stop with health care institutions. The Experts want
euthanasia and assisted suicide to be provided wherever people live,2
and "wherever people are living and dying."3
C1.1.2 This means that the recommendations that refer
to "institutions" apply not just to hospitals and hospices, but to
correctional institutions, nursing homes, retirement homes, assisted living
and extended care facilities, and group homes for mentally handicapped or
disabled persons such as those run by L'Arche:4 in short,
to any residential facility.
C1.1.3 As a result, in the commentary below, while the
term "institution" is retained in direct reference to the relevant
recommendation, it is replaced elsewhere by "facility,"
and "patient" is replaced with "patient/resident."
|
|
All "institutions" - public and private - must allow euthanasia or
assisted suicide on premises, or arrange for it to be done elsewhere
(: p. 46-47)
|
Faith-based "institutions" must allow euthanasia and assisted suicide on
their premises, or arrange for it to be done elsewhere
(: p. 47)
|
C1.2.1 Recommendations 37 (Non-faith based institutions) and 38 (Faith-based
institutions) are confusing and misleading. The Experts purport to distinguish between the obligations of faith-based
and non-faith based facilities to participate in euthanasia and assisted
suicide, but, in fact, the obligations are identical. The distinction
in the Report between "faith-based" and "non-faith-based" institutions is a
meaningless.
C1.2.2 While it is true that
more detail is provided about what is to be required of faith-based
facilities, the details are primarily of interest because they illustrate
that the Experts believe that religiously motivated citizens are more likely
to abandon their patients/residents or discriminate against them.5
C1.2.3 In brief, the Experts want to force all facilities, whether or not they are
"faith-based," to allow patients/residents to be killed or helped to
commit suicide on their premises, or to arrange for an "effective
transfer" of the patient/resident and his records to an "institution"
where that can be done.
C1.2.4 An "effective transfer" means "a safe and timely transfer to a
non-objecting institution" where the patient/resident "can be assessed and treated by
a health care provider who is willing and able to assess whether the patient
meets the eligibility criteria . . .and, if so" provide euthanasia or
assisted suicide.
C1.2.5 If a "safe and timely transfer" is not possible, the
Experts want all facilities forced to allow the patient/resident to be assessed and killed
or helped to commit suicide on their premises.
C1.2.6 It is true that the Experts explicitly impose the latter
requirement only on "faith-based" facilities, but it would be absurd to
suppose that the Experts really want to force denominational facilities to
allow euthanasia and assisted suicide in such circumstances, while exempting
state facilities.
C1.2.7 It is unlikely that an objecting facility would decline
to arrange a transfer for a patient/resident who merely wished to explore
the possibility of euthanasia or assisted suicide in a different
environment. Similarly, it is unlikely that a problem would arise if a patient/resident were to identify
and request a transfer to a facility
willing to provide assisted suicide or euthanasia. In neither case would the
objecting facility be actively enabling
euthanasia or assisted suicide.
C1.2.8 However, recall that the Experts
demand that a patient/resident seeking euthanasia or assisted suicide must be
completely relieved of the "burden" of finding a provider.6
Recommendation 38 states that the objecting facility - not the individual - must
"make arrangements for an effective transfer." Some facilities are
likely to consider this active involvement to constitute unacceptable
complicity in homicide and suicide, but the Experts want them forced to do
so.
C1.2.9 Recommendations 37 and 38, understood within the context of the
Report, are designed to compel all objecting facilities, from general
hospitals to L'Arche group homes, to become critical enablers of euthanasia
and assisted suicide, at least to the extent of helping to arrange for the
procedures.
|
|
All "institutions" must disclose position on and limits to euthanasia and
assisted suicide
(: p. 46)
|
C1.3.1 Recommendation 34, if adopted, will affect every institution,
facility, association, organization or private individual providing either
health care or residential living for elderly, handicapped or disabled
persons in Canada.
C1.3.2 First: every one will have to establish "an
institutional position on physician assisted dying."
C1.3.3 Second: the default position proposed by the
Experts is that all "institutions" will allow euthanasia and assisted
suicide on their premises. In fact, none will be allowed to absolutely
prohibit the procedures (C1.2.5).
C1.3.4 Third: facilities that don't adopt
the default position and intend to limit euthanasia or assisted suicide on
their premises will have obligations to ensure patients/residents can access
the procedures elsewhere (C1.2.3,
C1.2.4, C1.2.5).
C1.3.5 Recommendation 34 effectively requires
"institutions" to disclose their "position," departures from the default
position, and policies under C1.2.4.
C1.3.6 The cumulative effect of the
recommendations will be to require all "institutions," from general
hospitals to Ottawa L'Arche group homes, to formulate a policy on
facilitating patient/resident access to euthanasia and assisted suicide, and
notify residents/patients/applicants of that policy.
C1.3.7 The Experts explain that prior disclosure of institutional
policies limiting euthanasia and assisted suicide will allow
patients/residents to decide whether or not to enter an facility. At first
glance, this seems to allow people the freedom to choose whether or not they
wish to live in or be treated in facilities that allow patients/residents to be
killed or commit suicide.
C1.3.8 However, if the Experts have
their way, no facility in Canada - public, private or faith-based - will be allowed to completely
prohibit euthanasia and assisted suicide on their premises, and all will be
forced to arrange for the services to be provided elsewhere (C1.2.3).
C1.3.9 From the perspective of patients/residents/applicants,
freedom of choice, according to the Experts, does not include the freedom to
choose to live where euthanasia and assisted suicide are forbidden. Freedom to choose means, at most, the
freedom to choose facilities - where they exist - that will only allow
patients to be killed or commit suicide on their premises in exceptional
circumstances.
C1.3.10 From a facility perspective, advance notice to potential patients/residents may help
to avoid some conflicts. However, as noted above, the requirement for
advance notice is not intended to allow them to operate without involvement in
euthanasia and assisted suicide, but to force them to make plans to
facilitate the procedures, based on the assumption that they are obliged to
do so.
C1.3.11 Particularly in the case of facilities providing
homes or treatment for people who are disabled, mentally handicapped or
mentally ill, the requirement to advise all potential patients/residents of
the facility policy on how to access euthanasia and assisted suicide may
well be seen as offensive, contrary to the mandate of the facility and
insensitive to or even abusive of applicants and residents.
|
|
"Institutions" must not require patients or residents to give up "the
right to access" assisted suicide and euthanasia(: p.
46)
|
|
|
"Institutions" must not prevent physicians or employees from providing
assisted suicide or euthanasia elsewhere
(: : p. 46)
|
C1.4.1 Recommendations 35 and 36 must be read together, as the Experts
state that both have the same purpose: "to limit the power of institutions"
to restrict patient autonomy.
C1.4.2 Recommendations 35 and 36 have nothing to do with the
expectation that patients will be provided with information sufficient to
make informed decisions, or that they will be advised of all "legal
options," including euthanasia and assisted suicide. Those points are
covered by Recommendations 31 and 32.
C1.4.3 Recommendation 35 assumes that Carter
provides a positive right to assisted suicide and euthanasia: that it give
citizens the right to demand that the state or others must kill them or help
them commit suicide.
C1.4.4 In fact, the ruling provides a defence to murder and assisted
suicide charges in certain circumstances - nothing more. It is, at best, a
right not to be prevented from obtaining assisted suicide and euthanasia (Appendix
A2.8, A3.11). Facilities cannot require individuals to
give up that right.
C1.4.5 On the other hand, to manifest and make
effective its opposition to killing patients or helping them to commit
suicide, and/or to manifest and make effective a commitment to palliative
care, religious or moral beliefs, or a philosophy of life or medicine, the
management of an objecting facility could:
- refuse to allow euthanasia or assisted suicide to be
provided on the premises;
- refuse to assist in finding someone willing to provide the
procedures;
- refuse to arrange for euthanasia or assisted suicide elsewhere
(while cooperating in transfers of care);
- prohibit emloyees or physicians in the facilty from arranging
euthanasia or assisted suicide elsewhere during interactions with
patients/residents (while respecting principles of informed medical
decision making);
- give preference in hiring and promotion to applicants or employees
supportive of facility philosophy
- publicize such policies and disclose them to applicants for
admission, employment or privileges.
C1.4.6 Applicants for admission, employment or
privileges who were unwilling to abide by such policies would be free to
apply to a different facility. If they changed their minds after
admission or joining facility staff, they would be free to leave. This
approach does not require them to give up rights established by
Carter.
C1.4.7 However, it appears that Recommendations 35 and
36 are intended to prohibit such policies. Taken together, they are
apparently designed to prohibit objecting facilities from disciplining or
dismissing employees or physicians who, while working in the facilty,
actively subvert its fundamental commitments by promoting or arranging for
euthanasia or assisted suicide during interactions with patients/residents.
It appears that the Experts want to establish a regime that prohibits the
manifestation or expression of effective opposition to euthanasia and
assisted suicide.
C2. Objecting physicians/health care providers
- Note: The Experts want other health care
professionals to be able to provide euthanasia and assisted suicide and
to participate in delivering the services through teams, so reference to
"physicians" here must be understood to apply to other health care
workers who are acting in the place of physicians.
|
|
Objecting physicians must provide information on "all options,"
regardless of their beliefs (: p. 44)
|
C2.1.1 The Experts recommend that physicians should be
required to offer the options of therapeutic homicide or suicide,
"regardless of their personal beliefs." Providing information
responsive to a patient's questions or expressed interest would be
necessary to meet the requirements of informed medical decision
making.
C2.1.2 If the Experts
mean only that physicians should be required to provide information
necessary to allow informed decision making if a patient asks about
euthanasia or assisted suicide, this is unlikely to be problematic.
- In the
Project's experience, physicians who object to providing morally contested
procedures do not normally object to providing information that a patient
needs in order to make informed decisions.
- Moreover, the Project's
experience is that objecting physicians are particularly sensitive to and
anxious to respond to the difficult circumstances that may cause patients to
request euthanasia or physician assisted suicide.
- The suggestions made
in recent guidance from the College of Family Physicians of Canada indicate
the kind of response that should be presumed and encouraged.7
C2.1.3 On the other hand, the Experts may believe that patient cannot provide
valid informed consent to other forms of treatment if they are not apprised
of the options of assisted suicide and euthanasia immediately upon
diagnosis, or at least before agreeing to other forms of treatment.
This would be consistent with the Experts recommendation that the options be
offered to patients even if they are not suffering, so that they
can complete advanced directives authorizing euthanasia and assisted suicide
in anticipation of suffering (Appendix B2).
C2.1.4 It is
not clear whether or not the Experts want physicians forced to gratuitously offer
euthanasia and assisted suicide as treatment options in the absence of any
indication of interest from a patient.
C2.1.5 In contrast, a draft policy proposed by the College of Physicians and Surgeons
of Manitoba presumes that a request for euthanasia or physician assisted
suicide will come from the patient. It does not impose a requirement that
physicians offer patients the options of euthanasia or assisted suicide.8
This is prudent, for three reasons.
C2.1.6 First: the Carter decision
did not strike down the law against counselling suicide [241(a) Criminal
Code], so the gratuitous suggestion of physician assisted suicide even to
patient who meets the Carter criteria may expose physicians to criminal
prosecution.
C2.1.7 Second: physicians may believe that it would
sometimes be harmful or even abusive to gratuitously offer assisted suicide and
euthanasia as treatment options: the case of a patient just blinded or
paralysed by an industrial accident comes to mind.
C2.1.8 Third, and
more commonly, it is likely that many physicians would find it at least
insensitive to offer assisted suicide and euthanasia as treatment options
upon a diagnosis of dementia, congestive heart failure, chronic obstructive
pulmonary disease, stroke, or major depressive disorder, all of which would
qualify as irremediable medical conditions under the terms of the Carter
ruling.
C2.1.9 The concerns noted in C2.1.6 to C2.1.8 are likely to be common
not only among objecting physicians, but among physicians willing to be
involved in euthanasia and assisted suicide in at least some circumstances.
|
|
Objecting physicians must disclose
views on euthanasia and assisted suicide to patients, and the implications
of their views (: p. 44)
|
C2.2.1 The Experts recommend that physicians "appropriately inform
their patients of the fact and implications of their conscientious
objections," and provide ongoing treatment "in a non-discriminatory manner."
C2.2.2 This displays notable bias in favour of euthanasia and
assisted suicide, ironically cloaked in a pretence of moral/ethical
neutrality. Killing patients and helping them commit suicide in defined
circumstances is, for the Experts, legally and morally/ethically normative. Hence, they do not recognize that the views of physicians
who do not object to killing patients or helping them commit suicide
also
have implications for patients.
C2.2.3 When appropriate, both
objecting and non-objecting physicians should notify patients of their views
on assisted suicide and euthanasia. Any further requirement for a discussion
of the implications of their views should apply equally to objecting and
non-objecting physicians.
|
|
Objecting physicians must provide ongoing treatment of patients
seeking euthanasia and assisted suicide in a non-discriminatory
manner
(: p. 44)
|
C2.3.1 The Experts' warning against illicit
discrimination is directed to only to objecting physicians: another example
of bias.
C2.3.2 If it is reasonable to suspect that objecting physicians might
illicitly discriminate against patients who want euthanasia or assisted
suicide, it is equally reasonable to suspect that non-objecting physicians
might illicitly discriminate against patients who do not want euthanasia and
assisted suicide. Thus, the warning against illicit discrimination ought to
be addressed to both.
C2.3.3 Moreover, there is actually more reason
to offer a warning about illicit discirmination to physicians willing to provide euthanasia and assisted suicide, because they are more likely to be charged
with illicit discrimination by human rights tribunals or regulatory
authorities. University of Ottawa law professor Amir Attaran attempted to
make this point, albeit in the wrong context:
Across Canada, laws
forbid service providers from discriminating against the disabled. In
Ontario, the Human Rights Code defines a "disability" in broad terms that
include serious illnesses - certainly any "grievous and irremediable"
illness, to borrow the Supreme Court's phrase. Thus, when doctors offer the
full standard of care to patients - but not to disabled patients, who get a
lesser standard of care because it excludes assisted dying - that is
discrimination.9
C2.3.4 For the most part, Professor Attaran's column
cannot be taken seriously,10 but the argument he attempts on this issue is not
entirely without legal merit if it is recast to apply to non-objecting
physicians who wish to limit the scope of their practices.
C2.3.5 Physicians who, for reasons of conscience or religion, refuse absolutely to
participate directly or indirectly in assisted suicide and euthanasia are
acting within the terms of the Carter ruling (Appendix
A3).
C2.3.6 However, consistent with Professor Attaran's
argument, that is not necessarily
true of physicians who provide euthanasia or assisted suicide in some
circumstances but not in others.
C2.3.7 Physicians willing to provide euthanasia and assisted suicide for patients
who are terminally ill or disabled, but not the mentally ill, might well be
accused of illicitly discriminating against the mentally ill. Physicians
willing to provide euthanasia and assisted suicide for patients who are
terminally ill, disabled or mentally ill, but not children and adolescents,
might well be accused of illicitly discriminating against children and
adolescents.
C2.3.8 This is
corroborated by the position of the Quebec Commission on Human Rights and
Youth Rights. The Commission warned Quebec legislators that the failure to allow
euthanasia for children and adolescents and the incompetent (which would
include many patients with dementia and mentally illness) amounted to
illicit discrimination.11 Speaking of Bill 52, M. Jacques Fremont, head of the
Commission, said that if the bill were not changed to allow euthanasia for
minors and the incompetent (it was not) "I guarantee you there will be a 16
year old who will go to court" and "the prohibition for incompetent minors
will be quick-fried."12
C2.3.9 The legal threat posed by aggressive
lawyers and law professors like Professor Attaran is most credible with
respect to physicians willing to directly or indirectly provide euthanasia
and assisted suicide for selected sub-groups of patients (e.g., the
terminally ill), but who, for reasons of conscience or for other reasons,
are unwilling to do so for other sub-groups (e.g., the mentally ill). It
would seem that these physicians can reduce or minimize their legal jeopardy
either by participating in euthanasia and assisted suicide for all
patients under all conditions allowed by law, or by absolutely refusing to
participate under any circumstances.
|
|
Objecting physicians must act as critical enablers of therapeutic
homicide and suicide (: p. 44-45) |
C2.4.1 Three alternatives
C2.4.1.1 Physicians who, for reasons of conscience or religion, refuse to kill
patients or help them commit suicide are offered three alternatives by the
Experts: referral, direct transfer of care, and transfer to a third party.
The Experts do not expect objecting physicians and health care providers to
assess the patient's eligibility for assisted suicide or euthanasia, but
they do insist that objecting physicians and health care providers become
critical enablers of euthanasia and assisted suicide.
C2.4.2.1 The Experts do not define "referral." The omission
is remarkable. Referral has been the centre of controversy in relation to
morally contested procedures since the Project's inception in 1999. Since at
least 2006, Advisory Group member Professor Jocelyn Downie has actively
campaigned for compulsory "effective referral" for abortion, contraception,
euthanasia and assisted suicide,13 as that term has been defined by the
College of Physicians and Surgeons of Ontario (CPSO):
An effective
referral means a referral made in good faith, to a non-objecting, available,
and accessible physician, other health-care professional, or agency. The
referral must be made in a timely manner to allow patients to access care.
Patients must not be exposed to adverse clinical outcomes due to a delayed
referral.14
C2.4.2.2 A serious controversy over the CPSO's policy
imposing a demand for effective referral for morally contested services led
to an ongoing lawsuit against the College.15 The College has since proposed
that "effective referral" should be required for physicians unwilling to
kill patients or help them commit suicide.16
C2.4.2.3 In addition to "effective referral," the term
"referral" can be used in a narrow, technical
sense to mean a formal arrangement for consultation with another physician.
However, as it is frequently used by those demanding that physicians "refer
for abortion" or "refer for euthanasia," it often means only providing
contact information for a provider or directing the patient to someone who
will provide the service.
C2.4.2.4 An expectation of referral under
any of these forms would be not be problematic for physicians who have no
objections to euthanasia or assisted suicide in principle, but who do not
wish to write lethal prescriptions or lethally inject patients themselves.
Nor would it be objectionable to physicians whose moral reasoning leads them
to conclude that such referral absolves them of culpable complicity in
homicide or suicide.
C2.4.2.5 However, all three forms of referral are
unacceptable to physicians who consider such assistance to involve
unacceptable complicity in wrongdoing. Their ethical or moral reasoning is
exactly the same as that underlying refusal to provide contact information
for a crack dealer or a pimp trafficking in adolescent flesh.
C2.4.3 Direct transfer of care
C2.4.3.1 Direct transfer of care is proposed
as a second alternative. The Experts explain:
We recognize that some
providers view a transfer of care as morally preferable to referral because,
unlike referral, it is taken to neither explicitly nor implicitly affirm
[**] the service sought by the patient. (P. 45)
C2.4.3.2 The Experts propose that a direct transfer of care could be
initiated after a patient has requested euthanasia or physician assisted
suicide and has discussed end-of-life options with an objecting physician or
health care provider.
A health care provider could transfer the
patient to another health care provider for the assessment and treatment of
the patient's medical condition and, if the patient meets the eligibility
criteria, provision of physician-assisted dying. The receiving health care
provider must be someone who is willing and able to accept the person as a
patient and does not conscientiously object to physician-assisted dying. (P.
45)
C2.4.3.3 The Experts' claim that this "direct transfer" cannot be
understood to explicitly or implicitly affirm the moral acceptability of
euthanasia or assisted suicide is disingenuous. In no sense is this
different from arranging for a patient with complex medical needs to be
transferred to a specialist who can provide treatment an attending physician
is unable to provide. These arrangements presume and thus implicitly affirm
the moral acceptability and probable efficacy of the treatment in question.
C2.4.3.4 Bluntly, the Experts demand
that objecting physicians or health care providers find a colleague
willing to accept and assess their patients and kill them or help them
commit suicide if they are eligible. Having found a willing colleague,
they demand that objecting physicians arrange for the transfer of the
patient for that purpose.
C2.4.3.5 Draft guidance from the College of
Physicians and Surgeons of Ontario adds a detail not included by the
Experts, but obviously required in order to effect a "direct transfer."
The College acknowledges that the number of physicians
and/or agencies to which a referral would be directed may be limited,
particularly at the outset . . . and that this is relevant to any
consideration of whether a physician has complied with the requirement to
provide an effective referral. In light of these circumstances, the
College expects physicians to make reasonable efforts to remain apprised of
resources that become available in this new landscape.17
C2.4.3.6 Requiring objecting physicians to maintain
up-to-date lists of health care providers willing to kill patients or
help them commit suicide underscores the degree of deliberate participation
expected of them.
C2.4.4 Transfer to "a publicly-funded system" or "third party"
C2.4.4.1 In view of the foregoing, it is not surprising
that the Experts concede that "direct transfer" is likely to
be problematic. They offer a third option
"for those who are not willing to provide a direct transfer of care on
conscience or religious grounds."
C2.4.4.2 Those physicians, say the
Experts, should be required to contact "a publicly-funded system designed to
ensure that patients are able to access a health care provider willing to
accept them as a patient for assessment" and provide euthanasia or assisted
suicide if they are eligible. The objecting physicians would transfer the
patient's records to the "publicly-funded system" to facilitate that
process.
C2.4.4.3 The "publicly-funded system" to which the Experts
refer is described in greater detail under Recommendation 4.
We recommend the creation of a publicly-funded care
coordination system to link patients with an appropriate provider of
physician-assisted death. . . We recommend that this system be modelled on
successful examples used in other health care services (e.g. cancer care,
organ transplantation). We envision them as "patient navigators", people who
have an understanding of the field, knowledge of health care providers who
are willing to provide physician-assisted dying . . . While the system's
initial role would be to connect patients to physicians and manage the
transfer of patients, over time they may also assist with helping patients
understand the range of end-of-life options available, including palliative
care. (Emphasis added)18
C2.4.4.4 This "system" (or "third party") is like a bus or taxi
service that objecting physicians or health care providers would be expected
to call to arrange for
patients to be delivered to colleagues for the purpose of having them killed
or helped to commit suicide. The Experts see that as its first priority.
Only later ("over time") might this "system" begin to provide more information about
options, while continuing as a euthanasia/assisted suicide delivery service.
C2.4.4.5 The Experts' comparison of their "system" or "third
party" to existing organ transplant arrangements is instructive. The Experts
believe that killing patients and transplanting organs are both
morally/ethically acceptable. Thus, policies and systems suitable for
delivering hearts and livers to save patients lives can simply be adapted to
deliver lethal injections and toxic prescriptions to end them.
C2.4.4.6 In British Columbia, for example, a physician
who has a patient who may be a suitable candidate for organ donation calls a
referral and notification number to determine if consent for donation has
been given, and approaches the family after the Organ Donor Registry has
been checked. The physician actively manages the case and cooperates
with other health care providers until the organs have been retrieved.19
A British Columbia physician who has a patient in need of an
organ must do a preliminary assessment for contraindications and then
register the patient in an on-line referral system, the first step toward
matching the patient with a suitable donor and, ultimately, organ
transplantation.20
C2.4.4.7 Physicians managing donors and recepients are
actively involved in the process leading to organ transplantation.
While a transplant may not ultimately occur for reasons beyond their
control, it is clear that their actions are intended to culminate in a
transplant, and that they are professionally and morally engaged in the
process.
C2.4.4.8 The Experts demand the same level of
professional and moral commitment to killing patients and helping them
commit suicide through an analogous system. This is just as
unacceptable to many objecting physicians as effective referral and direct
transfer.
C2.4.4.9 It does not seem that the Experts believe that these physicians
are "genuinely wicked" - a position taken by Baroness Mary Warnock, another
expert euthanasia activist.21
Nonetheless, the Experts obviously believe that objecting physicians are so
seriously mistaken that their views do not deserve accommodation, and that
they should be forced to provide direct transfers if their "system" or
"third party" is not available.
C2.4.5 The Experts' "system/third party"
and
the CMA's "central service"
C2.4.5.1 The Experts' description of their
"system/third party" is similar to a proposal supported by the Canadian
Medical Association (CMA) (Appendix
D3.18), but there are some notable differences.
C2.4.5.2 Key points in the CMA proposal:
- Physicians are not obliged
- "to provide or participate"
- "to refer the patient to a physician or a medical administrator
who will provide assisted dying"
- Objecting physicians are obligated to respond to a patient's request
and must
- provide the patient with complete information on all
options available, including assisted dying; and
- advise the patient on how they can access any separate central
information, counseling, and referral service; and
- provide relevant medical records "when authorized by the
patient"; and
- transfer the patient's chart to the new physician when
authorized by the patient to do so.
- Objecting physicians must not
- discriminate against a patient, or
- "impede or block access" to euthanasia or assisted suicide
C2.4.5.3 The CMA's proposed "separate central information, counseling,
and referral service" appears to differ from the Experts "system/third
party" in three ways.
C2.4.5.4 First: consistent with the terminology in
Carter (Appendix A3.1 to A3.3),
the CMA
states that objecting physicians are not obliged "to provide or participate"
in euthanasia or assisted suicide.
- At no point do the Experts make
this statement. On the contrary: they believe that physicians are
legally and ethically obliged to actively enable euthanasia and
assisted, and their recommendations concerning their "system/third
party" reflect that belief.
C2.4.5.5 Second: the CMA proposal does not require objecting physicians to
contact the central service or initiate a
transfer of patients and records. Their
involvement is limited to providing information to the patient, and
responding to requests to patient-initiated tranfer of records. The
initiative remains with the patient.
- In contrast, consistent with their demand that patients be
completely relieved of the "burden" of finding a willing physician, the
Experts require objecting physicians to make arrangements through their
"system/third party" just as physicians must make arrangements for organ
transplants.
C2.4.5.6 Third: the "central information, counseling,
and referral service" recommended by the CMA was acceptable to organizations
representing many objecting physicians (Appendix
D3.8) precisely because it
was understood not to be a euthanasia/assisted suicide delivery
system.
- The Experts clearly envisage their "system/third party" to function
as a euthanasia/assisted suicide delivery system, analogous to an organ
transplant system.
C2.4.5.7 It is not unreasonable to be concerned by
these differences, and it would be imprudent to ignore them entirely. It
appears that, but for the Carter decision, every alternative
recommended by the Experts would expose a physician to prosecution as a
party to the offence of first degree murder or assisted suicide, or
conspiracy to commit first degree murder or assisted suicide.
C2.4.5.8 The Project's position is that the CMA
position is clearly preferable because it ensures patient access without
compromising physician freedom of conscience.
C2.4.5.9 Even those who see no essential
difference between the CMA and the Experts' proposal have good reason to
prefer the former for pragmatic reasons. Having been developed by physicians
themselves, it is more likely to enjoy the support of the medical
profession, and thus generate fewer problems in implementing the Carter
decision, particularly if legislators and regulators work cooperatively with
the CMA.
Notes:
1. Provincial-Territorial Expert Advisory
Group on Physician-Assisted Dying,
Final Report
(30 November, 2015) (Hereinafter "Report"), p. 43.
2. Report, Recommendation 27: p. 41.
3. Report, p. 46.
4. L'Arche:
What is L'Arch? (Accessed 2015-12-22).
5. Thus the Experts felt it important to state,
"Faith-based institutions have a duty to care for and not abandon the
patients within their instititution," - a reminder not given to non-faith
based institutions. Report, p. 47.
6. Report, p. 43.
7. College of Family Physicians of Canada,
A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and
Voluntary Euthanasia (September, 2015) p. 5 (Accessed
2015-10-30).
8. College of Physicians and Surgeons of Manitoba,
Draft
Statement on Physician Assisted Dying (15 October, 2015)
9. Attaran A.
"Doctors can't refuse to help a patient die - no matter what they say."
iPolitics, 13 November, 2015 () Accessed 2015-12-28.
10. Murphy S.
"Amir Attaran and the elves: A
law professor makes much ado. Responding to 'Doctors can't refuse to help a
patient die - no matter what they say.'" Protection of Conscience
Project.
11. Consultations, Friday, 4 October 2013
- Vol. 43 no. 43: Commission on Human Rights and Youth
Rights (Jacques Fremont, Renée Dupuis, Daniel
Carpentier, Marie Carpentier),
T#010.
12. Consultations, Friday, 4 October 2013
- Vol. 43 no. 43: Commission on Human Rights and Youth
Rights (Jacques Fremont, Renée Dupuis, Daniel
Carpentier, Marie Carpentier),
T#114.
13. See, for example, Rodgers S. Downie J.
"Abortion: Ensuring
Access." CMAJ July 4, 2006 vol. 175 no. 1 doi:
10.1503/cmaj.060548 (Accessed 2015-06-17); 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. 69, 101 (Accessed
2014-02-23)
14. College of Physicians and Surgeons of
Ontario,
Professional Obligations and Human Rights (March, 2015)
(Accessed 2015-12-28).
15. Ontario Superior Court of Justice, Between
the Christian Medical and Dental Society of Canada, the Canadian
Federation of Catholic Physicians' Societies, Dr. Michelle Korvemaker,
Dr. Betty-Ann Story, Dr. Isabel Nunes, Dr. Agnes Tanguay and Dr. Donaldo
Gugliotta and College of Physicians and Surgeons of Ontario,
Notice of Application, 20 March, 2015.
16. College of Physicians and Surgeons of
Ontario,
Interim Guidance on Physician Assisted Death (Draft) Lines 156-189
(Accessed 2015-12-29).
17. College of Physicians and Surgeons of
Ontario,
Interim Guidance on Physician Assisted Death (Draft) Note
3, p,. 5
(Accessed 2015-12-29).
18. Report, p. 24
19. BC Transplant,
Critical Care Resources. (Accessed 2016-01-12)
20. BC Transplant,
Clinical Guidelines for Kidney Transplantation
(Revised January 29, 2015) p. 4 (Accessed 2016-01-12)
21. News Letter, "Doctors
who refuse euthanasia 'wicked,' expert claims." 6 January,
2009. (Accessed 2015-12-29)