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]

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

 

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

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

Re:  Implementation of Supreme Court of Canada ruling in Carter v. Canada

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. . . . [Full Text]

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Refusal (as revised)

5 June, 2015

Abstract

Council has been given no evidence that anyone in Saskatchewan has ever been unable to access medical services or that the health of anyone in Saskatchewan has ever been adversely affected because a physician has declined to provide or refer for a procedure for reasons of conscience.

The conclusion that objecting physicians “should not be obligated to provide a referral to a physician who will ultimately potentially provide the service” is entirely satisfactory. It is a tacit admission that such a policy would be an unacceptable assault on freedom of conscience.

Conscientious Refusal as revised attempts to nullify the alleged ‘bias’ of physicians who object to a procedure for reasons of conscience by requiring them to refer patients to a non-objecting colleague. This proposal is not sound, since, if it is to be applied fairly and consistently, the ‘bias’ of physicians who do not object to a procedure should be nullified in the same way. This would simply exchange one kind of alleged ‘bias’ for another, inconvenience patients and provide them with no better care.

The more sensible course is to require all physicians to provide patients with sufficient information to satisfy the requirements of informed medical decision making.  Physicians must advise patients at the earliest reasonable opportunity of services or procedures they decline to recommend or provide for reasons of conscience, advise affected patients that they may seek the services elsewhere, and ensure that they have sufficient information to approach other physicians, heath care workers or community organizations.  They must not promote their own moral or religious beliefs when interacting with a patient.

Physicians unwilling to abide by these requirements must promptly arrange for a patient to be seen by another physician or health care worker who is able to do so.

If the College is determined to enact a policy on conscientious refusal, it should ensure that the policy adopted is sufficiently flexible to accommodate physicians with respect to all procedures or services. Otherwise, Council should reject Conscientious Refusal as revised and postpone policy development until after the Carter decision comes into force in 2016.


Contents

I.    Revision of draft policy – Conscientious Refusal

II.    Focus of this submission

III.    Section 5.3

IV.    Section 5.3: Suggested modification

V.    Section 2: Scope

VI.    Summary

Appendix “A” – Ontario College briefing materials

Appendix “B” – Providing Information

Appendix “C” – Conscientious Refusal and assisted suicide/euthanasia

Your morality, my mortality: conscientious objection and the standard of care

Ben A. Rich

Abstract

Recently the scope of protections afforded those healthcare professionals and institutions that refuse to provide certain interventions on the grounds of conscience have expanded, in some instances insulating providers (institutional and individual) from any liability or sanction for harms that patients experience as a result. With the exponential increase in the penetration of Catholic-affiliated healthcare across the country, physicians and nurses who are not practicing Catholics are nevertheless required to execute documents pledging to conform their patient care to the Ethical and Religious Directives for Health Care Services as a condition of employment or medical staff privileges. In some instances, doing so may result in patient morbidity or mortality or violate professional standards for respecting advance directives or surrogate decisionmaking. This article challenges the ethical propriety of such institutional mandates and argues that legal protections for conscientious refusal must provide redress for patients who are harmed by care that falls below the prevailing clinical standards.


RICH, B. (2015). Your Morality, My Mortality: Conscientious Objection and the Standard of Care. Cambridge Quarterly of Healthcare Ethics, 24(2), 214-230. doi:10.1017/S0963180114000528

Opinions on conscientious objection to induced abortion among Finnish medical and nursing students and professionals

Petteri Nieminen, Saara Lappalainen, Pauliina Ristimäki, Markku Myllykangas, Anne-Mari Mustonen

Abstract: Conscientious objection (CO) to participating in induced abortion is not present in the Finnish health care system or legislation unlike in many other European countries.

Methods: We conducted a questionnaire survey with the 1st- and the last-year medical and nursing students and professionals (548 respondents; response rate 66-100%) including several aspects of the abortion process and their relation to CO in 2013.

Results: The male medical respondents chose later time points of pregnancy than the nursing respondents when considering when the embryo/fetus ‘becomes a person’. Of all respondents, 3.5-14.1% expressed a personal wish to CO.

The medical professionals supported the right to CO more often (34.2%) than the nursing professionals (21.4%), while ≥62.4% could work with someone expressing CO. Yet ≥57.9% of the respondents anticipated social problems at work communities caused by CO.

Most respondents considered self-reported religious/ethical conviction to be adequate for CO but, at the same time, 30.1-50.7% considered that no conviction would be sufficient. The respondents most commonly included the medical doctor conducting surgical or medical abortion to be eligible to CO.

The nursing respondents considered that vacuum suction would be a better justification for CO than medical abortion. The indications most commonly included to potential CO were second-trimester abortions and social reasons.

Among the medical respondents, the men were more willing to grant CO also in case of a life-threatening emergency of the pregnant woman.

Conclusions: While the respondents mostly seemed to consider the continuation of adequate services important if CO is introduced, the viewpoint was often focused on the staff and surgical abortion procedure instead of the patients. The issue proved to be complex, which should be taken into consideration for legislation.


Nieminen P, Lappalainen S, Ristimäki P, Myllykangas M, Mustonen A-M. Opinions on conscientious objection to induced abortion among Finnish medical and nursing students and professionals. BMC Medical Ethics 2015, 16:17  doi:10.1186/s12910-015-0012-1