Full Text

VI.    CONTENTS OF THE CMA/RDMA PROPOSAL

VI.1    Introduction

VI.1.1    The focus of this review is the 2018 proposal by the CMA and RDMA (2018C/RDMA),1 but a comparison with the original proposal (2016C/RDMA)2 is sometimes necessary to fully grasp the implications of the most recent document.  Three parts of the proposal that warrant attention are outlined below, with some preliminary observations. Detailed analysis follows in Part VII.

VI.2    Related WMA policies

VI.2.1    The CMA and RDMA state that the only WMA policies related to their proposal are the WMA Resolution on Euthanasia, the WMA Declaration on Euthanasia, and the WMA Statement on Physician Assisted Suicide, which their proposal would replace. 

VI.2.2    However, existing WMA policies against euthanasia and assisted suicide are cited and emphatically applied in the WMA Declaration of Venice on Terminal Illness3 and the WMA Declaration on End-of-Life Medical Care.4  It appears that the CMA and RDMA overlooked these declarations in drawing up their proposal.

VI.2.3    If the WMA accepts the C/RDMA proposal it will also have to revise these declarations, either by deleting all references to euthanasia and assisted suicide, or by identifying them as services physicians may wish to provide where they are legal.

VI.3    Preamble

VI.3.1    Irrelevant or uncontroversial assertions

VI.3.1.1    The CMA and RDMA note that the progress of modern medicine has generated difficult questions about the usefulness and appropriateness of medical interventions (2018C/RDMA §5).  This is irrelevant.  Problems caused by therapeutic obstinacy - unwanted, disproportionate, futile or overly aggressive medical treatments - can be solved without recourse to euthanasia or assisted suicide, and the solutions do not impose any obvious burdens upon physician freedom of conscience.

VI.3.1.2    The first two sentences of 2018C/RDMA §7 do not invite or support the conclusion that the WMA should change its policy against euthanasia or assisted suicide, nor do they impose any burdens upon physician freedom of conscience: 

• Appropriate end-of-life care should routinely respect and promote patient autonomy and shared decision-making, and be respectful of the values of the patient and his or her family.

• Physicians must also focus on quality of care, and on the choices that can be made together with their patients as they near their end of lives.

VI.3.2    Rights claims

VI.3.2.1    The sole justification offered in the Preamble for changing WMA policy against physician participation in euthanasia and assisted suicide is found in the last sentence of C/DMA2018 §7:

Patients must be free to decide for themselves what treatments they want and the manner and circumstances of their death and may not be forced to die in ways they would not wish. (Emphasis added)

VI.3.2.2    There is no dispute that patients have at least a legal right to refuse treatment that they do not want.  While they are free to decide what treatments they want, it does not follow that they have a right to have treatments they want, but the distinction is elided in the statement, and it is not clear that it is recognized.  In any case, these are essentially  autonomy-based rights claims ("must'): that patients have a right to choose (and perhaps access) any treatment they do want, a right to determine the manner and circumstances of their death, and, finally, a right not to die "in ways they would not wish" - from natural causes, for example.

VI.3.2.3    These rights claims are contested and have serious implications for physician freedom of conscience, as Dr. Blackmer and then CMA President Dr. Louis Hugo Francescutti admitted when they announced the CMA's intention to intervene in the Carter case:

[W]e must recognize that decisions taken at the end of life are not made in a vacuum. They affect family members, loved ones, caregivers, healthcare providers … and even physicians. One person’s right is another person’s obligation, and sometimes great burden. And in this case, a patient's right to assisted dying becomes the physician’s obligation to take that patient’s life. (Emphasis added)5

VI.3.3    Assertion of need

VI.3.3.1    The Preamble notes that in jursidictions that have legalized physician assisted suicide and/or euthanasia, "some physicians" provide the services  "to help meet the immediate needs of their patients, in order to alleviate intractable and hopeless suffering." (2018C/RDMA §1)  The original proposal (2016C/RDMA §2) said nothing of "needs," noting only that EAS practitioners were motiviated by "compassion."

VI.3.3.2    The change implies an objectively verifiable need to be killed or helped to commit suicide to address pain or suffering.  By approving the policy the WMA would  acknowledge such a need, and, implicitly, a corresponding obligation on the part of physicians.

VI.3.3.3    Those opposed to euthanasia and assisted suicide would contest the assertion that euthanasia or assisted suicide are actually requested and provided only to "alleviate intractable and hopeless suffering."  Some prominent cases suggest that the range of what is said to constitute  "intractable and hopeless suffering" is extraordinarily broad.6,7,8

VI.3.3.4    In any case, it will be seen presently that the CMA and RDMA do not hold that euthanasia and assisted suicide should be provided only in cases of intractable and hopeless suffering, so the reference to intractable and hopeless suffering in the preamble is actually of no consequence.

VI.3.4    Conflict between euthanasia/assisted suicide and medical practice

VI.3.4.1  The Preamble acknowledges that euthanasia and assisted suicide challenge (it does not say contradict) the traditional concepts (it does not say ethics) of the medical profession, and that the practices are not part of the "traditional role" of physicians (2018C/RDMA §8). 

VI.3.4.2    Even in countries where there is an appetite for euthanasia and assisted suicide and the procedures are legal, the majority of physicians who cannot reconcile the procedures with their ethical commitments is a very large majority indeed.  In Belgium, only about 1% of all physicians participated in euthanasia in the first year; for the next three years only about 2% were involved. 13 years after legalization less than 14% of Belgian physicians were providing the service.9 The Netherlands began with much higher rates once euthanasia was formally legalized, but twelve years later the proportion of all physicians providing euthanasia was still less than 10%.10 Less than 1% of all physicians prescribe assisted suicide drugs in Oregon11 and Washington state,12 though assisted suicide has been legal in those jurisdictions for nine and almost 20 years respectively. These are maximum estimates; actual numbers could be much lower, because one practitioner may be responsible for a number of cases.13 Four or five euthanasia cases per year is apparently considered a responsible maximum for a euthanasia practitioner in the Netherlands.14 Applying the Netherlands rule of thumb, the 551 Ontario patients who died by euthanasia or assisted suicide in the first year of practice15 could have been adequately serviced by roughly 110 to 137 practitioners willing to personally administer the lethal drugs - or about 0.4% of active Ontario physicians.16

VI.3.4.3    These statistics are approximations, but, combined with the results of the WMA regional conferences, they amply demonstrate that the overwhelming majority of physicians worldwide do not wish to be involved in euthanasia and assisted suicide.  It is thus noteworthy that the 2016 admission that "the majority of physicians" find the procedures to be irreconcilable with medical ethics (2016C/RDMA §7) has been struck out entirely, replaced in 2018 with the statement that "many physicians" merely recognize the conflict (2018C/RDMA §8).

VI.3.4.4    Arguments concerning coerced referral for abortion can be retooled and applied to euthanasia, and disputes concerning compulsory referral for euthanasia reflect long-running disputes about compulsory referral for abortion.  The connection is demonstrated by the importation of two passages from the current revision of the Declaration of Oslo into the C/RDMA proposal.  The first concerns ethical conflict about abortion and euthanasia/assisted suicide (IV.6.5):

VI.2.4.5    In fact, as the regional meetings demonstrated, the responses are not diverse but sharply dichotomous.  The CMA and RDMA hold what is actually an outlying minority position.

VI.3.5    Palliative care not a prerequisite for euthanasia/assisted suicide

VI.3.5.1    A comparison of the 2016 and 2018 documents is especially instructive in relation to palliative care.  Originally said to be part of "part of good and appropriate medical care" (2016C/RMDA §5), in the revised proposal this is only so when it is "available" (2018C/RMDA §6). The implication may be that actual access to palliative care need not be a precondition for the provision of euthanasia and assisted suicide, a conclusion consistent with the proposal's recommendations.

VI.4    Recommendations

VI.4.1    The WMA Statement on Physician Assisted Suicide declares that euthanasia and assisted suicide are unethical, "must be condemned by the medical profession," and that physicians providing the services act unethically. Thus, according to current WMA policy, the CMA and RDMA have not only failed in their professional duty to condemn the practices, but are acting unethically by supporting euthanasia/assisted suicide providers.  The CMA wants the WMA to reverse its position.17

VI.4.2      To accomplish this, the CMA and RDMA recommend that the WMA make four policy statements.

VI.4.3    The WMA does not support/does not condemn

VI.4.3.1    2018C/RDMA §9 is the first and principal policy statement.  The core element is very similar to the resolution used by the CMA Board of Directors as the basis for reversing CMA policy against euthanasia and assisted suicide.  The final sentence in 2018C/RDMA §9 has been taken from the current draft revision of the Declaration of Oslo.18 Editorial changes and additions to the 2016 proposal in all of the extracts below are indicated by yellow highlight and red text respectively. 

VI.4.3.2   Comparing the CMA Board Resolution and C/RDMA statements, two differences are apparent. 

•  The CMA resolution was silent on the Association's position on euthanasia and assisted suicide.
  •  The C/RDMA proposal clearly states that the WMA does not support or sanction the procedures (though this is contradicted later). 
• The CMA resolution affirmed support for the right of physicians to exercise freedom of conscience.
  • The C/RDMA proposal states only that the WMA "does not condemn or label as unethical" physicians who follow their consciences concerning the procedures, and advocates respect for freedom of conscience.

VI.4.3.3    Since the overwhelming majority of WMA members would likely oppose any policy  implying their support for the euthanasia or assisted suicide, the explicit declaration to the contrary could be expected to mollify them and minimize opposition to the C/RDMA proposal.

VI.4.4    Physician freedom of conscience

VI.4.41    The second recommended policy statement directly addresses physician refusal to participate in euthanasia and assisted suicide.

10. No physician should be forced to participate in euthanasia or assisted death against their personal moral beliefs. Equally, no physician should be forced to refer a patient to another physician in order to provide assistance in dying.

VI.4.4.2    The first sentence is essential and sound, though "personal" is superfluous.  At this point, demands that physicians must personally provide euthanasia or assisted suicide are only beginning to be made and are still rare.19,20 The distinction made between participation and referral is problematic, as is the narrowing of protection to cases involving direct referral for the procedures.  These points are addressed in the detailed analysis in Part VII.

VI.4.4.3    C/RDMA 2018 §11, the third policy statement, seeks to resolve conflicts between patient demands for services and physician freedom of conscience, including refusal to refer.  It implies that the state or some other entity is responsible for ensuring access to euthanasia and assisted suicide. 

11. Jurisdictions that legalize euthanasia or physician assisted death must provide mechanisms that will ensure access for those persons who meet the appropriate requirements. Physicians, individually or collectively, must not be made responsible for ensuring access.  Where the law allows euthanasia and physician assisted death to be performed, the procedure should be performed by a competent physician or other health care provider.

VI.4.4.4    However, to state that physicians or health care workers should provide euthanasia and assisted suicide where they are legal flatly contradicts the earlier statement that the WMA "does not support or sanction" euthanasia or assisted suicide (2018C/RDMA §9).

VI.4.5    Palliative care

VI.4.5.1   A slight change in the preamble may indicate that the CMA and RDMA do not believe that access to palliative care should be a precondition for the provision of euthanasia and assisted suicide. (VI.3.13)  Changes in the fourth policy statement that deals directly with palliative care seem consistent with that conclusion. 

12. WMA also calls on all members to work to ensure access to high quality palliative care services for those in need. Euthanasia and physician assisted suicide should not be used as a substitute for palliative care but should be seen as a last resort for those whose intractable and hopeless suffering cannot be alleviated through any other ordinary means.

VI.4.5.2   The first change is subtle.  The 2016 proposal stated that euthanasia and assisted suicide "should never" be substitutes for palliative care, but the 2018 proposal states they "should not" be (2018C/RDMA s12). 

VI.4.5.3    The second change is important but invisible to readers who do not have the 2016 proposal.  A key 2016 passage has been struck from the 2018 version (§12 above).

VI.4.5.4    The deletion of the restriction resolves an internal contradiction. The CMA and RDMA would have the WMA affirm that patients have a right to the treatment they want, the right to determine the manner and circumstances of their death, and the right not to be forced to die "in ways they would not wish" (VI.3.2).  However, if one accepts these rights claims, to insist that euthanasia and assisted suicide can be provided only as a last resort, only in the face of intractable and hopeless suffering would seem to be an unacceptable and paternalistic denial of those rights.  Striking out the requirement resolves the contradiction and reinforces the claims.

Notes

1.    World Medical Association.  MEC 203/Euthanasia-Physician Assisted Dying/Apr2016: Proposed WMA Reconsideration of the Statement on Euthanasia and Physician Assisted Dying [2016 CDMA].

2.    World Medical Association.  MEC 210/Euthanasia and PAD/Oct2018: Proposed WMA Reconsideration of the Statement on Euthanasia and Physician Assisted Dying [2018 CDMA].

3.    World Medical Association. Declaration of Venice on Terminal Illness [Internet]. 2006 Oct [Cited 2018 Sep 29].

4.    World Medical Association. Declaration on End-of-Life Medical Care [Internet] 2011 Oct [Cited 2018 Sep 29].

5.    Blackmer J Francescutti LH. Canadian Medical Association Perspectives on End-of-Life in Canada. HealthcarePapers 2014 April; 14(1):17-20.doi:10.12927/hcpap.2014.23966

6.    Grant K. Medically assisted death allows couple married almost 73 years to die together. [Internet]. 2018 Apr 1 [Cited 2018 Sep 28].

7.    Waterfield B. Euthanasia twins 'had nothing to live for.'  The Telegraph [Internet] 2013 Jan 14 [Cited 2018 Sep 28].

8.    Cook M. Dutch couple choose euthanasia together. BioEdge [Internet]. BioEdge; 2017 Aug 19 [Cited 2018 Sep 28].

9.    Murphy S. Euthanasia reported in Belgium: statistics compiled from the Commission Fédérale de Contrôle et d' Évaluation de l'Euthanasie Bi-annual Reports [Internet]. Protection of Conscience Project; 2017 Aug [Cited 2018 Sep 29].

10.   Murphy S. Euthanasia reported in Netherlands: statistics compiled from the Regional Euthanasia Review Committees' Annual Reports [Internet]. Protection of Conscience Project; 2017 Aug [Cited 2018 Sep 29].

11.   Murphy S. Assisted suicide reported in Oregon, U.S.A.: statistics compiled from the Oregon Public Health Division annual Death with Dignity Act reports [Internet]. Protection of Conscience Project; 2017 Aug [Cited 2018 Sep 29].

12.    Murphy S. Assisted suicide reported in Washington State, U.S.A.: statistics compiled from the Washington State Dept. of Health annual Death with Dignity Act reports  [Internet]. Protection of Conscience Project; 2017 Aug [Cited 2018 Sep 29].

13.    For example, by August, 2017, Dr. Lonny Shavelson of California was responsible for the deaths of 48 patients pursuant to the state’s assisted suicide statute. See Nutik Zitter J. Should I Help My Patients Die? The New York Times. [Internet]. 2017 Aug 5 [Cited 2018 Sep 29].

14.    Hune-Brown N. How to End a Life. Toronto Life [Internet]. 2017 May 23 [Cited 2018 Sep 29].

15.    First and second half year totals =189+362=551. See Health Canada. Interim update on medical assistance in dying in Canada June 17 to December 31, 2016. Ottawa: Health Canada, 2017 [Internet]. Ottawa: Health Canada, 2017 [Updated 2017 May 31; cited 2018 Sep 29]. Table 3.2: Profile of Medical Assistance in Dying by Jurisdiction/Region.

16.    There were about 29,500 MDs in active practice in the province. See College of Physicians and Surgeons of Ontario. 2016 Annual Report [Internet]. Toronto: 2016 [Cited 2018 Sep 29]  p. 7.

17.    Blackmer J. Tweet Jeff Blackmer@jblackmerMD [Internet]. Twitter; 2017 Nov 15 at 11:29 pm [Cited 2018 Sep 28].

18.    World Medical Association.  MEC 209/Therapeutic Abortion REV4/Apr2018: Proposed WMA Statement on Medically-Indicated Termination of Pregnancy (April, 2018).

19.    Savulescu J, Schuklenk U. Doctors have no right to refuse medical assistance in dying, abortion or contraception.  Bioethics [Internet] 2017 [Cited 2018 Sep 29] ;31(3):162-170.

20.    Attaran A. The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court’s Decision in Carter v Canada. Health L Can 2016; 36(3)  86-98.