Submission to the College of Physicians and Surgeons of Nova Scotia

Re: Standard of Practice: Physician Assisted Death

Abstract

The Project considers the proposed standard of practice satisfactory with respect to the accommodation of physician freedom of conscience and respect for the moral integrity of physicians. Neither direct nor indirect participation in euthanasia and assisted suicide is required.

The Project offers simple and uncontroversial recommendations to avoid conflicts of conscience associated with failed assisted suicide and euthanasia attempts and urgent situations.

The standard does not adequately address the continuing effects of criminal law. The College has no basis to proceed against physicians who, having the opinion that a patient does not fit one of the criteria specified by Carter, refuse to do anything that would entail complicity in homicide or suicide. College policies and expectations are of no force and effect to the extent that they are inconsistent with criminal prohibitions.

While the standard is satisfactory with respect to freedom of conscience, the fundamental freedoms of physicians in Nova Scotia will remain at risk as long as the College Registrar and others persist in the attitude and intentions demonstrated in his presentation to the Special Joint Committee on Physician Assisted Dying.


Contents

I.    Outline of the submission

II.    Avoiding foreseeable conflicts

II.1    Failed assisted suicide and euthanasia
II.2    Urgent situations
II.3    Project recommendations

III.    SPPAD and criminal law

IV.    Remarks of the Registrar

IV.1    The Registrar before the Special Joint Committee on Physician Assisted Dying
IV.2    The Registrar, the Conscience Research Group, and “effective referral”
IV.3    The Registrar’s intentions
IV.4    The Registrar’s complaint
IV.5    An ethic of servitude, not service

V.    Conclusion

Appendix “A”    Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix “B”    Conscience Research Group

B1.    Attempts to coerce physicians: abortion
B2.    Plans to coerce physicians: assisted suicide and euthanasia
B3.   Plans to coerce physicians: the CRG Model Policy
B4.    CRG convenes meeting with College representatives

2ublic

Docs will flee, experts warn

London Free Press

Jonathon Sher

Dr. Maria MacDonald laboured 12 years as a student and medical resident to become a neurologist, but the Londoner may give that up if she’s forced to refer patients to a physician-assisted death.

“My freedom of conscience has been violated,” she said. “Do I have to leave and go to another field?”

Other doctors are asking that same question in Ontario, whose regulatory college is the only one in Canada to demand that physicians who oppose helping patients die refer them to a colleague willing to assist in a death.

“It’s an extensive belief,” said Larry Worthen, executive director of the Christian Medical and Dental Society of Canada.

A month ago, Worthen said, he teleconferenced with 40 doctors and some already had taken steps so they could leave Ontario and practise medicine elsewhere. . . [Full text]

Assisted dying: Parliament must let doctors practise with a clear conscience

Globe and Mail
Reproduced with permission

John Carpay

Since the Supreme Court legalized physician-assisted dying last year, some have argued that physicians should be required to help patients kill themselves, even if this violates their Charter-protected conscience freedoms.

As Parliament creates new legislation to respond to this court ruling, some insist that doctors must simply provide whatever a patient may want, or else refer the patient to another doctor who will. This claim trivializes the freedom of conscience of all Canadians, and the role of ethics and morality in medicine.

For more than 2,000 years, physicians have been guided by ethics and morality, not science alone, through the foundational principles embodied in the Hippocratic Oath and its modern incarnations.

In deciding what is best for their patients, doctors are not mindless dispensaries for medication. Science can inform us about what quantity of which drug is required to end a patient’s life, but science cannot tell us whether it is right to end a patient’s life through assisted suicide or other means of deliberate death.

 

Physicians routinely refuse to provide  –  and offer referrals for  –  drugs and procedures that the physician considers contrary to a patient’s best interest. From the patient’s standpoint, this produces inconvenience and possibly hardship. But the patient is not prevented from finding another doctor, whereas the doctor cannot go and find another conscience. She has only her own.

To refer for something is to participate actively. If a man asks me to sell him a gun to rob a convenience store, and I respond by refusing to sell the gun, but nevertheless provide him with the name and contact information of someone who will, I am complicit in the resulting robbery. This is why the provincial Colleges of Physicians and Surgeons, when they prohibit a doctor from performing female “circumcision” (genital mutilation), they also prohibit doctors from referring for that service.

Opponents of conscience protection denounce the prospect of a patient having to face a delay because her physician could not, in good conscience, provide a referral to another physician. Yet thousands of Canadians suffer in pain while waiting for months (and sometimes years) for medically necessary diagnosis and surgery. The law prevents these suffering patients from accessing private treatment outside of the government’s monopoly over health care.

With the exceptions of Canada, Cuba and North Korea, every other country in the world gives patients the right to choose between private and government-run health care. France, Japan and Australia are among the dozens of countries where patients count their wait times in days and weeks, not in months and years as Canadian patients do. If our goal is truly to get rid of delays in accessing medical services, then legalizing private health insurance would do far more than attacking the conscience rights of physicians, nurses, pharmacists and other health-care providers.

To protect the integrity of the medical profession, Parliament, as well as the provincial Colleges of Physicians, should promote and encourage the ability of physicians to practise medicine knowing that their freedom of conscience is being respected.

http://www.theglobeandmail.com/opinion/assisted-dying-parliament-must-let-doctors-practise-with-a-clear-conscience/article28569267/

 

 

Supreme Court of Canada respect for physician freedom of conscience and religion is not “a cop-out”

Responding to “Patient rights – even in death – must trump a doctor’s discomfort.” Globe and Mail, 1 February, 2016

Sean Murphy*

According to André Picard, the Supreme Court of Canada decided last year that patients could ask to be killed by physicians or ask physicians to help them commit suicide, but physicians could not be compelled “to actually kill a patient.” He describes this as “a perfectly reasonable balancing and reconciling of rights.”1

Indeed, it is perfectly reasonable to believe that physicians should not be forced to actually kill a patient. However, Mr. Picard is mistaken when he claims that the Supreme Court of Canada reconciled or balanced the rights of patients and physicians in the Carter ruling. The Court did not even attempt to do so, stating, instead, that patient and physician rights “will need to be reconciled.”2

With respect to physicians, the Court stated that “nothing” in the ruling would compel physicians to “provide” or “participate in” euthanasia or assisted suicide. This is precisely the language and thinking adopted by the Canadian Medical Association (CMA) in its policy framework.3 Mr. Picard is clearly angry about this, calling it “a cop-out that creates real barriers for desperately ill patients,” one that “regulators and legislators cannot and should not accept.”

However, in the face of the Carter ruling, Mr. Picard cannot expect the CMA, regulators and legislators to impose his deeply held personal belief that refusing to compel physicians to provide or participate in homicide or assisted suicide is an unacceptable “cop-out.”

Mr. Picard clearly prefers the policy of the College of Physicians and Surgeons of Ontario (CPSO) on “effective referral,” which demands that physicians who refuse “to actually kill a patient” must help find someone willing to do the actual killing.

Contrary to his claim that effective referral is a “well-established policy,” it was first imposed by the CPSO in Ontario last year in the face of overwhelming opposition, on the basis of deficient, erroneous and seriously misleading briefing materials, and without evidence that even a single person in Ontario had ever been unable to access medical services because of conscientious objection by a physician.4 It is the subject of an ongoing constitutional court challenge,5 and is not supported by the BC Civil Liberties Association – one of the driving forces behind Carter’s challenge to the law.6 None of this seems to concern Mr. Picard.

“Patient need takes precedence over physician discomfort,” he says, “and patient rights trump physician rights.”

However, the CMA’s Dr. Jeff Blackmer told the joint parliamentary committee on assisted dying that this is a false dichotomy. There are enough physicians willing to provide euthanasia or assisted suicide to meet the expected demand, he said, and other jurisdictions do not require “effective referral” by objecting physicians but there is no difficulty with access.7

“This should not be a debate between patient access OR the right to conscientious objection by health care professionals,” writes CMA President, Dr. Cindy Forbes. “We can absolutely accomplish both.”8

Mr. Picard’s demand that physicians must get over discomfort about killing people at least to the extent that they will contract out the actual killing no doubt reflects his deeply held personal beliefs. However, if the real goal is to ensure access – not ideologically driven ethical cleansing – there is no reason to demand that physicians do what they believe to be wrong. If the real goal is to ensure access to services – not to punish objecting physicians – that goal is best served by connecting patients with physicians willing to help them, and that can be done without demanding “effective referral.”

Notes

1. Picard A. “Patient rights – even in death – must trump a doctor’s discomfort.” Globe and Mail, 1 February, 2016 (Accessed 2016-02-04).

2. Carter v. Canada (Attorney General), 2015 SCC 5, para. 132. (Accessed 2016-02-04).

3. Canadian Medical Association,  Principles-based Recommendations for a Canadian Approach to Assisted Dying (2016) (Accessed 2016-01-09).

4. Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Saskatchewan (5 June, 2015) Re: Conscientious Refusal (as revised). Appendix “A”: Ontario College briefing materials .

5. Ontario Superior Court of Justice, Between the Christian Medical and Dental Society of Canada et al and College of Physicians and Surgeons of Ontario, Notice of Application, 20 March, 2015. Court File 15-63717.

6. Legislative Assembly of British Columbia, Report of Proceedings (Hansard), Select Standing Committee on Health. Wednesday, July 15, 2015, Issue No. 17, p. 270 (Accessed 2016-02-02).

7. Special Joint Committee on Physician Assisted Dying, Evidence: Wednesday, January 27, 2016. (Accessed 2016-02-04)

8. Forbes C. “Time for myth-busting on assisted dying.” Canadian Medical Association (4 February, 2016)

US primary care physicians’ opinions about conscientious refusal: a national vignette experiment

Abstract:

Objective: Previous research has found that physicians are divided on whether they are obligated to provide a treatment to which they object and whether they should refer patients in such cases. The present study compares several possible scenarios in which a physician objects to a treatment that a patient requests, in order to better characterise physicians’ beliefs about what responses are appropriate.

Design: We surveyed a nationally representative sample of 1504 US primary care physicians using an experimentally manipulated vignette in which a patient requests a clinical intervention to which the patient’s physician objects. We used multivariate logistic regression models to determine how vignette and respondent characteristics affected respondent’s judgements.

Results:
Among eligible respondents, the response rate was 63% (896/1427). When faced with an objection to providing treatment, referring the patient was the action judged most appropriate (57% indicated it was appropriate), while few physicians thought it appropriate to provide treatment despite one’s objection (15%). The most religious physicians were more likely than the least religious physicians to support refusing to accommodate the patient’s request (38% vs 22%, OR=1.75; 95% CI 1.06 to 2.86).

Conclusions:
This study indicates that US physicians believe it is inappropriate to provide an intervention that violates one’s personal or professional standards. Referring seems to be physicians’ preferred way of responding to requests for interventions to which physicians object.

Brauer SG, Yoon JD, Curlin FA  US primary care physicians’ opinions about conscientious refusal: a national vignette experiment.  J Med Ethics. 2016 Feb;42(2):80-4. doi: 10.1136/medethics-2015-102782. Epub 2015 Jul 1.

Doctors with moral objections to assisted dying should be able to opt out, committee hears

Assisted dying law could be coupled with improved palliative care, committee hears

CBC News

Peter Zimonjic

Doctors who morally object to physician-assisted dying should not be obligated to refer patients to a doctor who will provide the service, a joint Commons-Senate committee studying the issue heard Wednesday.

Dr. Cindy Forbes, president of the Canadian Medical Association told the panel that doctors shouldn’t have to refer a patient, but they must “advise the patient on all of their options … including physician assisted dying, and make sure the patient has the information they need to access that service” . . . [Full text]

A “uniquely Canadian approach” to freedom of conscience

Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide

Recommendations designed to broaden and maximize impact of Supreme Court ruling

Sean Murphy*

Abstract

The Experts’ recommendations are intended to extend and maximize the impact of the Carter ruling. They will effectively require all institutions, facilities, associations, organizations and individuals providing either health care or residential living for elderly, handicapped or disabled persons to become enablers of euthanasia and assisted suicide. This will entail suppression or significant restriction of fundamental freedoms.

The broader the criteria for the provision of morally contested procedures, and the more people and groups captured in the Experts’ enablers’ net, the greater the likelihood of conflicts of conscience.  Relevant here are recommendations to make euthanasia/assisted suicide available to mentally ill and incompetent persons, and to children and adolescents, even without the knowledge of their parents.

The Experts’ distinction between “faith-based” and “non-faith-based” facilities is meaningless. They impose identical obligations on both. All will be forced to allow homicide and suicide on their premises, or compelled to arrange for euthanasia or assisted suicide elsewhere.
Likewise, they recommend that objecting physicians be forced to actively enable homicide or suicide by providing referrals, arranging direct transfers or enlisting or arranging the enlistment of patients in a euthanasia/assisted suicide delivery system.

The Supreme Court did not rule that people ought to be compelled to become parties to homicide and suicide, but that is what the Experts recommend. This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them and a serious violation of human dignity.

Other countries make euthanasia and assisted suicide available without attacking fundamental freedoms. In this respect, the Experts’ claim to have produced “a uniquely Canadian approach to this important issue” is regrettably accurate. They fail to provide any evidence that the suppression of freedom of fundamental freedoms they propose can be demonstrably justified in a free and democratic society.


Table of Contents

I.    Background

I.1    Formation and work of the Advisory Group

II.    Overview of the Final Report

II.1    Moral/ethical unanimity
II.2    “Statement of Principles and Values”
II.3    Recommendations broadening the Carter criteria
II.4    Recommendations impacting freedom of conscience and religion

III.    The Experts’ “uniquely Canadian approach”

III.1     Expanded criteria and increasing likelihood of conflict

III.1.1    “Irremediable medical condition”.
III.1.3     Euthanasia approved for future suffering.
III.1.7     No waiting/reflection period.
III.1.10     Adolescents and children.
III.1.13     Euthanasia/assisted suicide by non-physicians.
III.1.15     Doctor shopping.
III.1.18     Physicians need not be present at suicides.
III.1.20     Euthanasia/assisted suicide wherever people live.
III.1.22     Families, caregivers may not be advised.

III.2    Institutions, associations, organizations

III.2.1     The meaning of institution.
III.2.3    All “institutions” must allow/arrange euthanasia/assisted suicide
III.2.6     All “institutions” must disclose policies.
III.2.8     “Institutions” may not manifest or enforce commitments

III.3    Objecting physicians: information, disclosure, non-discrimination

III.3.3    Objecting physicians must provide information.
III.3.8    Objecting physicians must disclose views and their implications.
III.3.11    Objecting physicians must not illicitly discriminate.

III.4    Objecting physicians must become critical enablers

III.4.4    Referral or direct transfer of care.
III.4.5    Referral to “system/third party.”
III.4.8    The Experts’ proposal and the CMA’s proposal.

IV.    Project response

IV.1    Expert recommendations broadening Carter criteria
IV.2    Expert recommendations and fundamental freedoms in general
IV.3    Expert recommendations and freedom of conscience

V.    Conclusion


Appendix “A”  Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix “B”  Expert recommendations re: broadening Carter criteria

B1.     Expanding the Carter criteria

B1.1    “Grievous and irremediable medical condition” includes mental illness
B1.2    Suffering not a prerequisite
B1.3    Competence not a prerequisite: euthanasia for dementia
B1.4    Euthanasia and assisted suicide for children and adolescents
B1.5    Assessment, euthanasia and assisted suicide by non-physicians

B2.    Increasing the impact of Carter

B2.3    Doctor shopping
B2.4    No “waiting/reflection” period
B2.5    Physicians need not be present at suicides
B2.6    Euthanasia & assisted suicide in hospitals, hospices, etc.
B2.7    Families and caregivers may not be advised

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    Must provide information on “all options”
C2.2    Must disclose views on euthanasia and assisted suicide
C2.3    Must not discriminate
C2.4    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”

Appendix “D”    Canadian Medical Association on euthanasia and assisted suicide

D1.    CMA policy: Euthanasia and Assisted Death (2014)
D2.    CMA Annual General Council, 2015

D2.1    Surveys on support for euthanasia/assisted suicide
D2.2    Physician freedom of conscience

D3.    CMA rejects “effective referral”

Appendix “E”    International comparisons

E1.    Netherlands
E2.    Luxembourg
E3.    Belgium
E4.    Oregon
E5.    Washington
E6.    Vermont
E7.    California

Appendix “F”    An Act to Safeguard Against Homicide and Suicide

 

College of Physicians and Surgeons of Ontario decided results of consultation before it started

College decided that physicians must refer for euthanasia/assisted suicide at least a month before consultation began

News Release

Protection of Conscience Project

The College of Physicians and Surgeons of Ontario (CPSO) decided by the first week of November, 2015, that it will force Ontario physicians who refuse to kill patients or help them commit suicide to find someone willing to do so.  The decision was made a month before the College began a public consultation purporting to solicit input on that and other questions related to euthanasia and assisted suicide.

The decision was revealed in the Report of the Federal External Panel consultations on euthanasia and assisted suicide, released today.

When College representatives appeared before the Panel in Toronto between 2 and 6 November, they told the Panel  “that physicians who object to physician-assisted dying requests have a positive obligation to make an effective referral.”

An effective referral, as described by the Ontario College, is a referral made in good faith to a non-objecting available and accessible physician, other health care professional, or agency. The College noted that the medical community has an obligation to ensure access and that conscientious objection should not create barriers.” (p. 100)

“The Protection of Conscience Project submission was made on 10 January, said Sean Murphy, Project Administrator.

“Two days later, the Canadian Medical Association made an excellent submission rejecting the proposal of  ‘effective referral’,” he added.

“Many people responded in good faith to the College’s invitation to participate in the consultation,” said Murphy.  “But it seems that public consultations about College policy are an expensive and time-consuming charade.”

Last year, College officials wrote the final version of the CPSO policy demanding “effective referral” for morally contested procedures a month before the consultation closed. About 90% of 9,000 submissions on the subject were received after the final version had been written.

 

 

 

 

Canadian Medical Association Submission to the College of Physicians and Surgeons of Ontario

Consultation on CPSO Interim Guidance on Physician-Assisted Death

Project Introduction

The following submission sets out the position of the Canadian Medical Association (CMA) on referral, within the context of the provision of euthanasia and assisted suicide.  The submission concerns a proposed policy by the state regulator of medicine in the province of Ontario, the College of Physicians and Surgeons (CPSO).  The College proposed that its policy of “effective referral” for morally contested services be applied to euthanasia and assisted suicide.

Among the excellent points made by the Association:

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. . . . 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.

Full text of the CMA submission

 

Submission to the College of Physicians and Surgeons of Ontario

 

Re: Interim Guidance on Physician Assisted Death

 Abstract

Virtually all of what is proposed in Interim Guidance on Physician-Assisted Death (IGPAD) is satisfactory, requiring only clarifications to avoid misunderstanding and appropriate warnings concerning the continuing effects of criminal law.

The College has no basis to proceed against physicians who refuse to do anything that would entail complicity in homicide or suicide, including “effective referral,” because they believe that a patient does not fit the criteria specified by Carter. College policies and expectations are of no force and effect to the extent that they are inconsistent with criminal prohibitions.

Proposals about respect for patients, access to services, and providing information are acceptable, subject to some clarifications and limitations with respect to offering the option of suicide. Simple and uncontroversial recommendations are offered to avoid problems associated with failed assisted suicide and euthanasia attempts, and in urgent situations.

However, the requirement for “effective referral “is completely unacceptable. It is ludicrous to assert that the reasoning that underpins the law on criminal complicity and culpability, civil liability and the College policy that prohibits referral for Female Genital Cutting can be dismissed as legally irrelevant to the exercise and protection of fundamental freedoms of conscience and religion.

The College cannot justify a demand for “effective referral” on the grounds that it cannot be understood to involve morally significant complicity in killing patients or helping them to commit suicide, nor can it be justified as a reasonable limitation on fundamental freedom.
The only apparent basis for the College’s demand for effective referral is that it has decided what the Supreme Court of Canada did not decide: that euthanasia and assisted suicide in circumstances defined by Carter are morally/ethically acceptable. College officials seem to consider the College justified in using force – the force of law – to compel dissenting physicians to conform to their moral/ethical views.

This is not a reasonable limitation of freedom but a reprehensible attack on them. It is a paradigmatic example of the authoritarian suppression of freedom of conscience and religion and a serious violation of human dignity. Examples of alternative acceptable policies demonstrate that access to assisted suicide and euthanasia can be ensured without suppressing freedom of conscience and religion.


Contents

I.    Outline of the submission

II.    Avoiding foreseeable conflicts

II.1    Failed assisted suicide and euthanasia II.2    Urgent situations
II.3    Project recommendations

III.    IGPAD and criminal law

IV.    IGPAD on respect, access, notification and providing information

IV.1    Treat patients respectfully; do not impede access
IV.2    Notification of objections
IV.3    Providing information

V.    Freedom of conscience

V.1    IGPAD and “effective referral”
V.2    “Effective referral” and criminal law
V.3    Legal vs. ethical/moral evaluation of euthanasia, assisted suicide
V.4    The College position: “error has no rights”

VI.    Project response

VI.1    Previous submissions
VI.2    Making freedom easy – or impossible
VII.    Alternative acceptable policies

VIII.    Conclusion

Appendix “A”    Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix “B”    Carter in theTrial Court, Part VII: A Judicial Soliloquy on Ethics

B1.    A note of caution
B2.    The questions addressed in Part VII
B3.    Plaintiffs’ claim shapes and limits the analysis
B4.    Ethics: which one?
B5.    Medical ethics
B5.1    Ethics and the willingness of physicians
B5.2    Ethics and the positions of medical associations
B5.3    Ethics and the opinions of ethicists
B5.4    Ethics and current end-of-life practices
B6.    Ethics of society
B6.2    Ethics and public opinion
B6.3    Ethics and public committees
B6.4    Ethics and prosecution policies
B7.    Summary of the ethical debate
B8.    Conclusions about the ethical debate
B8.2    Would Canadian physicians provide the services?
B8.3    Current medical practice with respect to end-of-life care?
B8.4   Does the law attempt to uphold a conception of morality?
B9.    Carter Part VII: in brief
B9.1    Unanswered questions
B9.2    Meaningless findings
B9.3    Inconclusiveness
B9.4    Neglected evidence
B9.5    Deficient review of end-of-life decision-making
B10.    On appeal to the Supreme Court of Canada

Appendix “C”    Physician Exercise of Freedom of Conscience and Religion

C1.    Introduction
C2.    Providing information to patients
C3.    Exercising freedom of conscience or religion
C4.    Reminder: treatments in emergencies