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Submission to the College of Physicians and Surgeons of Ontario
Re: Consultation on CPSO Interim Guidance on Physician-Assisted Death (13 January, 2016)

The Canadian Medical Association (CMA) is pleased to provide this submission in response to the Draft Interim Guidance on Physician-Assisted Death (Draft Interim Guidance) developed by the College of Physicians and Surgeons of Ontario (CPSO). The CMA is pleased to emphasize that the Draft Interim Guidance captures what we deem to be all the key principles and safeguards central to the implementation of physician-assisted dying.

The CMA notes that the guidance on conscientious objection is largely consistent with our view of physicians' positive obligations in instances where a physician declines to provide or participate in assistance in dying on grounds of conscience. However, the CMA has significant concerns with the requirement that physicians must provide an effective, i.e., a mandatory, referral. Given the significant risks associated with this approach, the CMA's submission in response to CPSO's Draft Interim Guidance will focus primarily on this issue.

It is the CMA's view that both organizations ultimately share the same objective on the questions of conscientious objection and patient access to medical care: to both protect physician conscience rights and patient rights and, in doing so, achieve an appropriate balance, or an effective reconciliation, between physicians' freedom of conscience and the assurance of effective and timely patient access to a medical service. The one substantive difference between the CMA's position and the approach proposed by the CPSO lies in the understanding of what it means to respect conscience.

There are different notions of conscience that fall along a spectrum of morally acceptable involvement in any given act as, for example, opposition, procedural non-participation, non-interference, and participation. For the majority of physicians who will choose not to provide assistance in dying, referral is entirely morally acceptable; it is not a violation of their conscience. For others, referral is categorically morally unacceptable; it implies forced participation procedurally that may be connected to, or make them complicit in, what they deem to be a morally abhorrent act. In other words, referral respects the conscience of some, but not others. From the CMA's significant consultation with our membership, it is clear that physicians who are comfortable providing referrals strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not.

It is the CMA's strongly held position that there is no legitimate justification to respect one notion of conscience (i.e. the right not to participate in assisted dying), while wholly discounting another because one may not agree with it. As such, in seeking an approach that achieves an appropriate balance, the CMA sought to articulate a duty that achieves an ethical balance between conscientious objection and patient access in a way that respects differences of conscience. It is the CMA's position that the only way to authentically respect conscience is to respect differences of conscience.

The CMA is completely aligned with the CPSO in that the physician owes a fiduciary duty to their patients. The physician as fiduciary has long been ensconced in ethics and law on the view that the patient-physician relationship hinges on the physician's duty to act, among other fiduciary duties, to protect and further their patients' best interests. The fiduciary nature of the patient-physician relationship has been described as "the most fundamental characteristic of the doctor-patient relationship" by Madame Justice McLachlin in Norberg v. Wynrib (1992).

Even as she recognized the fiduciary nature of the patient-physician relationship then, which she clearly understood would "provide the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires" (Norberg v. Wynrib [1992]), she asserted in Carter v. Canada (2015), as Chief Justice, that "nothing in the declaration of invalidity (…) would compel physicians to provide assistance in dying." This is because the physician's fiduciary obligation does not in any way mean that the physician must violate her moral integrity, in such a way that referral does for some objecting physicians.

Even on the basis of prioritizing patient interests, such that the fiduciary obligation requires and the CPSO Draft Interim Guidance affirms, it simply does not follow that putting patient interests first translates de facto to making a referral. The argument that only mandatory referral puts patients' interests first or respects patient autonomy − and that not making a referral does not − is fundamentally erroneous. There are many ways to conceptualize a physician's positive obligations to her patient that do not require the imposition of a duty to refer and thus uphold conscience rights, for example:

• a duty to inform by, e.g., providing complete information on all end-of-life options;
• a duty to care by, e.g., not being negligent or discriminating against the patient;
• a duty not to abandon the patient by, e.g., transferring care.

In short, articulating a physician's positive obligations of what she ought to do if she declines to provide or participate in an act on grounds of deeply held beliefs does not de facto translate to making a referral. It is the CMA's position that there is no logical or ethical basis for this argument.

Pitting conscience rights and patient rights against each other, as is done by the CPSO Draft Interim Guidance approach in not respecting conscience rights in their full integrity, creates a false dichotomy and an unnecessary trade-off. As many have argued, it is entirely possible not to compromise or limit patient access on any level without compromising the exercise of conscience. The argument to the contrary is not empirically supported internationally, where no jurisdiction has a requirement for mandatory effective referral, and yet patient access does not seem to be a concern.

The focus ought to be on the obligation to ensure effective access to the service. Enabling effective patient access by putting in place systems that facilitate access, as the Provincial-Territorial Expert Advisory Group has proposed and as we find in the Netherlands for example, emphasizes that it is a responsibility of the community to ensure access, rather than placing the burden of finding services solely on individual physicians.

The CMA's policy objective is to support those who will choose to provide or participate in assistance in dying and those who will not. To that end, the CMA has clearly outlined an objecting physician's positive obligations that respect differences of conscience, while proposing the creation of resources that effectively facilitate patient access. In doing so, the CMA's position articulates a duty that is widely morally acceptable and that allows physicians to act as moral agents without in any way impeding or delaying patient access to assisted dying.

It is in fact in a patient's best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement. At a time when some feel that we are seeing increasingly problematic behaviours, and what some view as a crisis in professionalism, medical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.

The CMA has significant concerns with the CPSO's divergence from the approach in other jurisdictions on mandatory referral. Further, it is the CMA's strongly held position that if the CPSO is to advance this position it will be a keycontributor to the emergence of a patchwork in Canada's pan-Canadian regulatory framework on physician-assisted death. As such, the CMA cannot emphasize strongly enough the need for the CPSO to revise its approach on referral to ensure alignment with other jurisdictions in Canada as well as internationally. This is imperative if Canada is to emerge with a consistent, pan-Canadian framework on assisted dying.

The CMA encourages the CPSO to review the CMA's framework entitled "Principles-Based Recommendations for a Canadian Approach to Assisted Dying", appended to this submission, for further details as to the CMA's recommended approach to respect the exercise of conscience.

We appeal to the CPSO to reconsider requiring mandatory referral to authentically respect the exercise of conscience. The CMA also encourages the CPSO to support the creation of systems and resources that would effectively facilitate access and, in doing so, truly put patients' interests first.

Attachment:  Principles-based Recommendations for a Canadian Approach to Assisted Dying (2016)

*About the Canadian Medical Association

The Canadian Medical Association (CMA) is the national voice of Canadian physicians. Founded in 1867, CMA's mission is helping physicians care for patients.

On behalf of its more than 80,000 members and the Canadian public, the CMA performs a wide variety of functions. Key functions include advocating for health promotion and disease/injury prevention policies and strategies, advocating for access to quality health care, facilitating change within the medical profession, and providing leadership and guidance to physicians to help them influence, manage and adapt to changes in health care delivery.

The CMA is a voluntary professional organization representing the majority of Canada's physicians and comprising 12 provincial and territorial divisions and 51 national medical organizations.