Court challenge raises issue of “reasonable apprehension of bias”

Sean Murphy*

Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.

In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights.  The policy requires physicians  to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service.  A constitutional challenge to the policy was dismissed by  the Ontario Divisonal Court in 2018.[1] An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.

Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015.  In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]

College officials  finalized the wording of the policy on 19 January, 2015,[3]   a month before the consultation ended; only about 565 submissions would have been received by then.[4]  727 submissions had been received  by the time the policy was sent to the Executive Committee on 28 January,[5]  which promptly endorsed it and forwarded it to the College Council for final approval.[6]

According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7]  Thus, the final version of the policy was written and approved by the College Executive before about  90% of the submissions in the second consultation had been received.

Submissions received by CPSO from 10 Dec 2014 to 20 Feb 2015

During the first 40 days ending 11 February, the College received an average of about 18 submissions per day.  Assuming someone spent eight full hours every working day reading the submissions, about 22 minutes could have been devoted to each.  Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.

Time available for analysis of submissions

However, this seems unlikely in the case of more than 8,000 submissions received later.

By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes.   A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days  – over 65% of the total.

A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome.  This conclusion is consistent with the finalization and approval of the policy  by the six member College Executive (which included the Chair of the  working group that wrote it [8]).  To do this weeks before the consultation closed was contrary to normal practice.  CPSO policy manager Andréa Foti stated that working groups submit revised drafts to the Executive Committee  after public consultations close[9] – not before.

One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy.  Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.

1. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Can LII)  [CMDS v CPSO].

2. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 1, Tab 1, Affidavit of Andréa Foti [Foti] at para 121.

3.    Foti, supra note 2 at para 133.

4. Estimated daily average based on the total received by 28 January (727).

5. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab WW, Exhibit “WW” attached to the Affidavit of Andréa Foti: Executive Committee Briefing Note (February, 2015) (CPSO Exhibit WW) at 1724.

6. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab XX, Exhibit “XX” attached to the Affidavit of Andréa Foti: Proceedings of the Executive Committee – Minutes – 3 February, 2015) (CPSO Exhibit XX) at 1746-1748.

7. “Council Briefing Note: Professional Obligations and Human Rights – Consultation Report & Revised Draft Policy (For Decision)” [CPSO Briefing Note 2015].  In College of Physicians and Surgeons of Ontario, “Annual Meeting of Council, March 6, 2015” at 61.

8. Dr. Marc Gabel. See CPSO Exhibit WW, supra note 4 at 1722 (note 1), and CPSO Exhibit XX, supra note 5 at 1746.

9. Foti, supra note 2 at para 36.

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]

Pharmacist freedom of conscience recognized in British Columbia

LifeSite News

Steve Weatherbe

VANCOUVER, British Columbia, March 9, 2017 (LifeSiteNews) – Christian pharmacists in British Columbia can now practice with a clear conscience.

Under the B.C. College of Pharmacy’s new ethics code, they cannot be forced to prescribe for abortions, euthanasia, or artificial contraception.

Cristina Alarcon, a Vancouver-area community pharmacist who was a driving force behind the new code, says it “covers everything.” For the first time, pharmacists can refuse to dispense any prescription that violates their conscience. [Full text]

 

Quebec euthanasia rate almost doubled in last half of 2016

Quebec euthanasia rate after one year passes Belgian rate at five year mark

Sean Murphy*

Since 10 December, 2015, euthanasia has provided by physicians in Quebec under the terms of An Act Respecting End of Life Care (ARELC).  Health and social services agencies established by the government throughout the province are state agencies responsible for the delivery and coordination of health care in the province administrative regions. These are called Centres intégrés de santé et de services sociaux (CISSS) and Centres intégrés universitaires de santé et de services sociaux [CIUSSS).  Some administrative regions (like Montreal and the Quebec City region) have more than one CISSS or CIUSSS.

These agencies are responsible for the delivery of euthanasia and are required to make reports to a commission established by the law (the Commission sur les soins de fin de vie) to monitor the administration of euthanasia.  According to the Commission, they are also required to post these reports on their websites.

As of 6 March, 2016, one of these agencies (Outaouais) had not posted the reports on its website.  Two (Outaouais and Abitibi-Temiscamingue) had neither posted the most recent report nor sent the report to the Commission, and did not respond to a request for it.

The Project has compiled the statistics provided by the other agencies in tables and charts.  Note that, in some cases, the number of patients lethally infused is higher than the number of requests because euthanasia was provided in response to a request made in the previous reporting period.

Quebec’s euthanasia rate almost doubled in the last half of 2016.  One year after legalization, Quebec has passed the euthanasia rate reached by Belgium after five years.  If Quebec’s rate continues without escalation throughout 2017, it will exceed that achieved by Belgium after nine years.

Therapeutic Homicide and Suicide in Canada:Collaboration, Conscription, Coercion and Conscience

Presented at the Central Oregon Right to Life Conference
Redmond, Oregon
10 September, 2016

Sean Murphy*

Preface

Thank you for the invitation to make this presentation on behalf of the Protection of Conscience Project.

Rather than use our time to talk about the Project, I have made background information and materials available in the display. After the presentation, I can answer questions or speak privately with people who would like to know more.

The presentation today is about therapeutic homicide and suicide in Canada. More specifically it is about expectations of collaboration, conscription of health care workers, and ongoing attempts to compel participation in morally contested services. [Full text]

 

Ontario physician first to announce plans to quit medicine due to demand for referral for euthanasia

Sean Murphy*

Moral imperialism by state authorities in Canada is beginning to take its toll.  A physician in Strathroy, Ontario, has publicly announced that she will not be renewing her licence to practise medicine because the College of Physicians and Surgeons of Ontario demands that she must either kill patients or help them commit suicide, or arrange for someone else to do so.

The College policy is a response to the 2015 Supreme Court of Canada ruling in Carter v. Canada (Attorney General).

Writing in the professional journal Canadian Family Physician in response to an article by Dr. Stephen Genuis (Emerging assault on freedom of conscience), Dr. Nancy Naylor thanked him for eloquently expressing her thoughts.  She states that mandatory referral for euthanasia or assisted suicide is “an assault on my integrity and ethics as a physician.”

Dr. Naylor has been a family physician for 37 years and has been exclusively providing palliative care for the past three years.

“I have no wish to stop,” she writes.  “But I will not be told that I must go against my moral conscience to provide standard of care.”

 

 

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)

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

 

Podcast: Amir Attaran and the elves: A law professor makes much ado

A response to   “Doctors can’t refuse to help a patient die – no matter what they say”, a column by University of Ottawa law professor Amir Attaran.  He refers to  the alleged “corrosive hostility” of the Canadian Medical Association to “physician-assisted dying” and its “cowardly and stupid” position on the procedure, including support for physician freedom of conscience. [Full text – Amir Attaran and the elves]

Podcast Contents

Introduction (00 – 01:40)

Attaran: CMA siding with “bigots”  (02:11 –  4:50  )

Attaran: “they cannot refuse”  (05:23 – 06:33)

What Professor Attaran left out  (06:34 – 08:15 )

Professor  Attaran then and now  (08:50 – 09:56)

Law on abortion vs. law on homicide  (09:57 – 11:32)

A difference in perspective  (11:33  – 13:12)

What else Professor Attaran left out  (13:13 – 18:38)

Getting the facts backwards  (19:11 – 20:50 )

A bureaucracy of medical deception

 Quebec physicians told to falsify euthanasia death certificates

Regulators support coverup of euthanasia from families

Sean Murphy*

In the first week of September, the Canadian Medical Association (CMA) was reported to be “seeking ‘clarity'” about whether or not physicians who perform euthanasia should misrepresent the medical cause of death, classifying death by lethal injection or infusion as death by natural causes. The question arose because the Quebec College of Physicians was said to be “considering recommending” that Quebec physicians who provide euthanasia should declare the immediate cause of death to be an underlying medical condition, not the administration of the drugs that actually kill the patient.1 In fact, the Collège des médecins du Québec and pharmacy and nursing regulators in the province had already made the decision. In August, the three regulators issued a Practice Guide directing Quebec physicians to falsify death certificates in euthanasia cases.

The physician must write as the immediate cause of death the disease or morbid condition which justified [the medical aid in dying] and caused the death. It is not a question of the manner of death (cardiac arrest), but of the disease, accident or complication that led to the death. The term medical aid in dying should not appear on this document.2

Lawyer Jean Pierre Ménard correctly observed that Quebec’s euthanasia law does not require physicians to report euthanasia on death certificates.1  M. Ménard is an expert on euthanasia law consulted by the Quebec government and the CMA,3  but he seems unaware of guidelines relevant to the classification of deaths and medico-legal death investigations. . . [Full text]