Appendix "F"

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FI.    Conscientious Refusal within the context of Carter

FI.1    The policy Conscientious Refusal was developed with assisted suicide in mind, and proposed following the ruling of the Supreme Court of Canada that orders the legalization of physician assisted suicide and physician administered euthanasia.  It is thus appropriate to consider it within the context of assisted suicide and euthanasia, recognizing that discussion is equally applicable to other morally contested services.

FII.    "The serious moral burdens of complicity"

FII.1    It is unlikely that a physician who refuses to personally kill a patient or provide an abortion for reasons of conscience will be prosecuted by state or professional authorities, since the practical competence of such a physician would be in doubt, and coercion of that kind would be politically unwise and counterproductive.

FII.2    On the other hand, physicians who object to euthanasia for reasons of conscience not only refuse to kill patients, but often refuse to do anything that they believe makes them morally responsible for the killing.  This includes actions that support or facilitate it - such as encouraging or affirming a patient's desire to be killed, or helping to find someone to do it. As Holly Fernandez Lynch noted in her book, Conflicts of Conscience in Health Care: An Institutional Compromise, such actions impose "the serious moral burdens of complicity."1

FII.3    It is thus likely that most of the attacks on freedom of conscience resulting from Carter will be precipitated, not by a refusal to kill directly, but by refusal to participate indirectly in killing.

FII.4    Are such refusals reasonable?  If so, what might reasonably be considered to be "indirect participation"?

FII.5    Answers to both questions are readily available from different sources, the first of which is Canada's Criminal Code.  It is both convenient and appropriate to use it to demonstrate that the concept of indirect participation is reasonable, and to illustrate what kinds of actions can be considered indirect participation in killing. 

FIII.    "Parties" to killing

FIII.1    The Code describes anyone who participates in a crime as a "party to an offence."  Applying Code's definition of "party" to assisted suicide or lethally injecting a patient, "party" would include

1. the physician who assists the suicide or injects the patient,2
2. anyone who does or omits to do anything for the purpose of helping the physician assist with the suicide or provide the lethal injection,3
3.  anyone who encourages, instigates, promotes or arranges it,4
4.  anyone who counsels, procures, solicits or incites a physician to provide it.5 

FIII.2    But for the Supreme Court's ruling, the criminally culpable participants in assisted suicide or lethal injection would include (1) the injecting physician, (2) the pharmacist dispensing the drug and the nurse preparing the needle, (3)  a family member or referring physician, and (4) the executive director of an institution or local authority who arranges for a willing physician to replace an objecting physician.  Again, but for Carter, a plan to assist in a patient's suicide or lethally inject a patient would constitute a criminal conspiracy among all who agree to it, each of whom (like members of an institutional ethics committee) is a participant in a conspiracy.6

FIII.3    The Criminal Code is concerned with criminal complicity or criminal culpability, which are narrower concepts than moral complicity or culpability.  Nonetheless, it demonstrates that the concept of indirect participation is well-recognized and undisputed.  A physician who refuses to facilitate the killing of a patient because he does not want to be a culpable participant in the killing is acting well within well-established moral and legal norms reflected in our criminal law. 

FIV.    Participation in killing

FIV.1    While these references to criminal law are clear and convenient, it is appropriate to supplement them by reflecting on the concept of morally significant participation in killing within the context of medical ethics.

FIV.2    World Medical Association

FIV.2.1    In October, 2012, the World Medical Association (WMA) reaffirmed its position that physician must not "participate in capital punishment, in any way, or during any step of the execution process, including its planning and the instruction and/or training of persons to perform executions", adding that, they must not "facilitate the importation or prescription of drugs for execution" (emphasis added).7

FIV.2.2    The WMA did not define "participation."  However, it is obvious that the statement reaffirmed was meant to include acts contributing even indirectly to an execution, and this was further emphasized by the additional proscription of "facilitating" drug importation or prescription.

FIV.3    American Medical Association

FIV.3.1    The policy of the American Medical Association forbids  physician participation in capital punishment.  We are not concerned here with the morality of capital punishment or even with the morality of physician participation in executions.  What is of interest is the discussion of "participation," which is obviously intended to mean morally significant participation.  The policy and supporting documents demonstrate that participation becomes morally significant to the extent to which one's actions contribute to and thus make one complicit in what follows from them.  With respect to participation in executions, this includes:

(1) an action which would directly cause the death of the condemned;

(2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned;

(3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

FIV.3.2    Among the actions identified by the AMA as "participation" in executions are

• prescribing or administering tranquillizers or other drugs as part of the procedure,
• directly or indirectly monitoring vital signs,
• rendering technical advice or consulting with the executioners,
• selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel;
• attending or observing an execution, except at the request of the condemned, or in a non-professional capacity.

FIV.3.3    The attention paid to what others might consider insignificant participation is exemplified in the provision that permits physicians to certify death, providing that death has been pronounced by someone else, and by restrictions on the donation of organs by the deceased.8

FV.    Participation in torture

FV.1    Recall that our interest here is not in the morality of capital punishment, euthanasia or assisted suicide, but in the meaning of morally significant participation.  This interest can be pursued further by considering participation in torture.

FV.2    Extraordinary rendition

FV.2.1    In the weeks following the terrorist attacks on the United States in September, 2001, Newsweek columnist Jonathon Alter argued that it was time to think about torturing terrorist suspects who might have information about plans for such horrendous crimes. He acknowledged that physical torture was "contrary to American values," but argued that torture is appropriate in some circumstances, and proposed a novel 'compromise:' that the United States turn terrorist suspects who won't talk over to "less squeamish allies,"9 a practice known as "extraordinary rendition." The allies would then do what Americans would not, without compromising American values. 

FV.3    Maher Arar

FV.3.1    Less than a year later, Canadian citizen Maher Arar, returning home from Zurich through New York, was detained, interrogated and "rendered" to Syria by U.S. authorities.10 In Syria he was imprisoned for almost a year, "interrogated, tortured and held in degrading and inhumane conditions."11 A commission of inquiry was appointed to investigate the actions of Canadian officials because, unlike Jonathon Alter, most Canadians did not believe that referral to "less squeamish allies" could absolve one of moral responsibility for torture.

FV.3.2    Even though Mr. Arar's deportation to Syria was effected by the United States, and Syrian officials imprisoned and tortured him, the public and the government wanted to know whether or not Canadian officials had caused or contributed to what happened to Mr. Arar.  The key issue was whether or not Canada was complicit in torture - even indirectly.  The report of the Inquiry made this abundantly clear: "Canada should not inflict torture, nor should it be complicit in the infliction of torture by others."12

If it is determined that there is a credible risk that the Canadian interactions would render Canada complicit in torture or create the perception that Canada condones the use of torture, then a decision should be made that no interaction is to take place (emphasis added).13

FV.4    Physician participation in torture

FV.4.1    Thus far, government officials. But the problem of complicity does not relate only to government officials. The Lancet, among others, has asked, "How complicit are doctors in the abuse of detainees?"14 and other journal articles have explored the answer with some anxiety.15

FV.4.2    The Arar Inquiry and the alarm raised about physician complicity in torture make sense only if it is agreed that facilitating an act done by someone else makes one morally responsible for it: a participant in the act, as it were: in the words of the Criminal Code, a party to it.  This is the principle underlying the prohibition of physician participation in capital punishment by the World Medical Association and American Medical Association, and it is also the basis for their prohibition of physician participation in torture.

FV.4.3    The WMA states that a physician must not "countenance, condone or participate in the practice of torture," "provide any premises, instruments, substances or knowledge to facilitate the practice of torture" and must not even be present "during any procedure during which torture or any other forms of cruel, inhuman or degrading treatment is used or threatened."16

FV.4.4    The AMA states that participation in torture includes, but is not limited to, "providing or withholding any services, substances, or knowledge to facilitate the practice of torture."17 Similarly, the Canadian Medical Association opposes physician involvement in the punishment or torture of prisoners. The CMA states that physicians "should refuse to allow their professional or research skills to be used in any way" for such purposes.18

FVI.    Participation in female genital cutting (mutilation)

FVI.1    Female genital cutting (also known as female circumcision) is a ritual practice that involves excising, infibulating or mutilating the labia majora, labia minora or clitoris, usually of girls four to eight years old.  It is a criminal offence in Canada, a form of aggravated assault.19

FVI.2    Consistent with the criminal law, the College of Physicians and Surgeons of Ontario prohibits physicians from performing female genital cutting, and also forbids referral for the practice: "The performance of, or referral for, FGC/M procedures by a physician will be regarded by the College as professional misconduct."20

FVI.3    This is formal acknowledgement by a state regulatory authority that facilitating an act - in this case by referral - makes one complicit in it.  Indeed, the policy makes no distinction between performance and referral; both amount to professional misconduct.

FVI.4    It might be argued that the College prohibition of referral merely reflects the criminal prohibition of aiding or abetting (discussed above).  However, ethical misconduct is distinct from criminal law; the College was free to draw the attention of physicians to the law against female genital cutting without also declaring it to be professional misconduct. 

FVI.5    Moreover, while the policy document cautions physicians about legal issues, it introduces the topic within the context of adverse health outcomes, and the principles that inform the policy concern the practice of medicine, the physician-patient relationship and the duty to act in the patient's best interests.  This is a professional ethical framework, not a mere re-statement of the criminal law.  

FVI.6    Finally, criminal rules of evidence require proof beyond reasonable doubt for conviction, so various factors, such as the absence of a key witness, may preclude criminal prosecution for referral for genital cutting.  However, the standard of proof in disciplinary proceedings is proof on the balance of probabilities, so that charge of professional misconduct for referral may proceed even if criminal prosecution does not take place.  In that case, the criminal law on parties to offences would not be applicable, though it could, as here, serve as a reference to illustrate the underlying principles. Instead a conviction for professional misconduct for referral would have to rely on the concept of morally significant participation discussed above.

FVII.    Refusing to participate 

FVII.1    It is reasonable to hold that the kind of action involved in helping a patient to access assisted suicide or euthanasia amounts to participation in the sense intended by various medical authorities in policies that forbid physician participation in capital punishment, torture or female genital cutting.  Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is not aberrant behaviour.  On the contrary: it is the response expected of physicians by professional bodies and regulators in order to avoid physician complicity in such procedures.

This appendix is taken from Murphy S. Redefining the Practice of Medicine: Euthanasia in Quebec. An Act Respecting End-of-Life Care (June, 2014) Part 6: Participation in Killing) Protection of Conscience Project

Notes

1.  Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. 229

2.  Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC"), Section 21(a). (Accessed 2015-03-05)

3.  Often referred to as "aiding." CC, Section 21(b). (Accessed 2015-03-05)

4.  The Code uses the word "abet."  CC, Section 21(c); R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. (Accessed 2015-03-05)

5.  CC, Section 22 (Accessed 2015-03-05)

6. R v. Papalia (1979) 2 S.C.R. 256; CC, Section 465. (Accessed 2015-03-05)

7. World Medical Association, "WMA Resolution to Reaffirm the WMA’s Prohibition of Physician Participation in Capital Punishment."  Adopted by the 63rd General Assembly of the World Medical Association, Bangkok, Thailand, October 2012. (Accessed 2014-07-17)

8.  American Medical Association, Resources- Medical Ethics: Opinion 2.06 - Capital Punishment.  (Accessed 2015-03-05) 

9. Alter, Jonathon, "Time to Think About Torture." Newsweek, 5 November, 2001, p. 45.

10. Wikipedia, "Maher Arar." (Accessed 2015-03-05)

11. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations. (hereinafter, "Arar Inquiry: Analysis and Recommendations") p. 9. (Accessed 2015-03-05)

 12.  Arar Inquiry: Analysis and Recommendations, p. 346. (Accessed 2015-03-05)

 13.  Arar Inquiry: Analysis and Recommendations, p. 199. (Accessed 2015-03-05)

14. Editorial, "How complicit are doctors in the abuse of detainees?" The Lancet, Vol 364, August 21, 2004, p. 725-729

15. Miles, Steven H., "Abu Ghraib: its legacy for military medicine." The Lancet, Vol 364, August 21, 2004, p. 725-729; Lifton, Robert Jay, Doctors and Torture. N Engl J Med 351;5

16.  WMA Declaration of Tokyo - Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment. Adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975 and editorially revised by the 170th WMA Council Session, Divonne-les-Bains, France, May 2005 and the 173rd WMA Council Session, Divonne-les-Bains, France, May 2006 (Accessed 2015-03-05)

17. American Medical Association Policy E.2.067: Torture. (Accessed 2015-03-05)

18. Canadian Medical Association Policy resolution BD80-03-99 - Treatment of prisoners. Status: Approved, 1979-Dec-08. Last Reviewed, 2004-Feb-28: Still relevant.

19.  CC, Section 268(3). (Accessed 2015-03-05)

20.  College of Physicians and Surgeons of Ontario, Policy Statement #2-11, Female Genital Cutting (Mutilation).  Reviewed and updated November, 2004, September 2011.  (Accessed 2015-03-05) 

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