Submission to the Canadian Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying

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I.    Introduction

I.1    The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience among health care workers. It does not take a position on the acceptability of morally contested procedures. For this reason, almost half of the questions in the Written Stakeholder Submission Form are outside the scope of the Project’s interests.

I.2    The completed Written Stakeholder Submission Form is in Appendix "A" of this submission. The responses are numbered for reference purposes.

II.    Scope of this submission

II.1    The responses in the Written Stakeholder Submission Form (Appendix "A") are supplemented, in some cases, by additional comments in Part III. A protection of conscience policy is suggested in Appendix "B."

III.    Additional comments on numbered responses

III.1    Role of Physicians (Response 11)

III.1.1    While the Quebec euthanasia kits are to include two courses of medication in case the first does not work,1 insufficient attention has been paid to the fact that euthanasia and assisted suicide drugs do not always cause death as expected.2

III.1.2    Physicians willing to perform euthanasia as well as to assist in suicide should disclose and discuss options available in the event that a lethal injection or prescribed drug does not kill the patient.

III.1.3    Physicians willing to prescribe lethal drugs but unwilling to provide euthanasia by lethal injection should consider what they may be expected to do if a prescribed drug incapacitates but does not kill a patient.

III.1.4    The possibility of this complication provides another reason for insisting that the physician who approves assisted suicide or euthanasia should be the one to administer the lethal medication or to be present when it is ingested. Expecting other health care workers to deal with this complication is likely to increase the likelihood of conflict in what will be an already emotionally charged situation.

III.2    Conscientious Refusal by Healthcare Providers (Responses 15, 16)

III.2.1    Conscientious refusal within the context of exemptions from criminal prosecution

The Netherlands

III.2.1.1    Consensual homicide and assisted suicide continue to be prohibited by the Penal Code in the Netherlands. The Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act does not actually authorize either physician-assisted suicide or euthanasia, but provides a defence to criminal charges for physicians who adhere to its requirements.3 In this respect, it is analogous to the provisions of the Canadian Criminal Code on therapeutic abortion from 1969 to 1988, and to the exemptions offered in the Carter decision.

III.2.1.2    One of the requirements of the Dutch law is that the physician must believe that the patient's request is "well-considered." Another is that the physician must believe that the patient's suffering is "lasting and unbearable." A physician who did not actually believe one or both of these things and who killed a patient or helped a patient commit suicide or aided or abetted either act would have no defence to a charge of murder or assisted suicide.

III.2.1.3    Physicians who object to euthanasia and assisted suicide for reasons of conscience usually do not believe that a request for either can be "well-considered." Moreover, they may not believe that a patient's suffering is "lasting and unbearable," particularly if the suffering can be relieved. On both points, the available defence requires actual belief; doubt is insufficient to provide a defence to a criminal charge.

III.2.1.4    Since the legal prohibition of homicide and assisted suicide is not displaced in such circumstances, there can be no obligation on the part of objecting physicians to provide or refer for euthanasia or physician-assisted suicide. They have no obligation to commit or cooperate in the commission of a criminal offence. 

Canada

III.2.1.5    Unlike the Supreme Court's 1988 Morgentaler decision, which struck down the abortion law entirely, the Carter decision did not invalidate murder and assisted suicide laws altogether, but only to the extent that the laws prevent homicide and assisted suicide by physicians in accordance with the guidelines laid down by the Court.

III.2.1.6    Thus, a physician accused of failing to follow the Carter guidelines is still liable to be charged for murder or assisted suicide, just as, prior to 1969, physicians who provided an abortion under guidelines based on the case of R. v. Bourne were liable to be charged if the abortion was not necessary to preserve the life of the mother.4

III.2.1.7    The Carter guidelines include requirements that an eligible patient must be competent, clearly consent, have a "grievous and irremediable medical condition" and experience "enduring suffering that is intolerable to the individual."5 In addition to moral considerations, an objecting physician may not be satisfied that one or more of these conditions has been met.

III.2.1.8    As in the case of the Netherlands, the legal prohibition of homicide and assisted suicide is not displaced in such circumstances. There can thus be no obligation on the part of objecting physicians to provide or refer for euthanasia or physician-assisted suicide if they are not satisfied that all of the conditions providing a defence to a charge of culpable homicide or assisting suicide have been met. They have no obligation to commit or cooperate in the commission of a criminal offence. On the contrary: they are obliged by law to refuse.

III.2.2    Suggested policy on physician exercise of freedom of conscience

III.2.2.1    Appendix "B" provides a policy concerning the exercise of freedom of conscience by physicians that, in the Project’s experience, would be acceptable to most objecting physicians. It can be modified to apply to other health care workers. It is consistent with

• the Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care (1999);

• the Canadian Medical Association Code of Ethics (2004);

• the Canadian Medical Protective Association publication, Consent: A guide for Canadian physicians (2006).

III.2.2.2    The policy provides seven alternative responses for objecting physicians, reflecting the fact that different ethical, moral or religious traditions may take different approaches to the issue of complicity in morally contested acts. Further, within some traditions, the facts of a particular case may influence the moral judgement of a physician.

III.2.2.3    The policy’s provisions concerning providing information to patients and two of the proposed alternatives [Appendix "B", III.6(e) and III.6(f)] are consistent with guidance recently approved at the recent Annual General Council of the Canadian Medical Association with respect to assisted suicide and euthanasia: that physicians should "provide complete information on all options and advise on how to access a separate, central information, counselling, and referral service."

III.2.2.4    CMA guidance noted in III.2.2.3 does not preclude the other alternatives in the suggested policy for reasons given by the Association to the Supreme Court of Canada:

The CMA's purpose, in developing and setting policy, is not to override individual judgment or to mandate a standard of care.6

The CMA's policies are not meant to mandate a standard of care for members or to override an individual physician's conscience.7

III.2.2.5    None of the responses obstruct patient access to services. Some responses involve deliberate of facilitation of the services. It is up to the physician to decide which response to choose in each case.

Notes:

1.  Ubelacker S. "Quebec MDs to get euthanasia guide to prepare for legalized assisted death:
Unclear whether other provinces and territories will adopt a similar practice." The Canadian Press, 1 September, 2015 (Accessed 2015-09-03).

2.  Groenewoud JH, van der Heide A. Onwuteaka-Philipsen BD Willems DL van der Maas PJ, van der wal G., "Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands." N Engl J Med 2000; 342:551-556 February 24, 2000

3.  Netherlands, Termination of Life on Request and Assisted Suicide (Review Procedures) Act (Accessed 2015-07-24).

4.  R. v. Bourne (1939) 1KB 687

5.  Carter v. Canada (Attorney General), 2015 SCC 5, paragraph 127 (Accessed 2015-02-07).

6.  In the Supreme Court of Canada (On Appeal from the Court of Appeal of British Columbia) Affidavit of Dr. Chris Simpson, Motion for Leave to Intervene by the Canadian Medical Association (5 June, 2014), para. 17 (Accessed 2015-06-22).

7.  In the SCC on appeal from the BCCA, Factum of the Intervener, The Canadian Medical Association (27 August, 2014), para. 9

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