Proposed Change to WMA Policies
Euthanasia and Physician Assisted Suicide
VI. REVIEW OF THE CMA/RDMA PROPOSAL
"The CMA accepts that the decision of whether
or not medical aid in dying should be
allowed as a matter of law is
for lawmakers, not medical doctors, to determine. The policy itself
acknowledges, uniquely among CMA policies in this respect, that "[ilt is
the prerogative of
society to decide whether the laws dealing with
euthanasia and assisted suicide should be
changed." In the SCC on appeal from the BCCA,
Factum of the Intervener, The Canadian Medical Association
(27 August, 2014) [CMA Factum] para. 5.
"In any event, the CMA accepts that the
decision as to the lawfulness of the current
prohibition on medical
aid in dying is for patients and their elected representatives as
lawmakers to determine, not physicians." CMA Factum, para. 17.
Blackmer J.
Assisted Dying and the Work
of the Canadian Medical Association. World Medical Association
Journal. 2017 Oct; 63(3):6-9 [Blackmer-WMJ)
(Accessed
2018-05-24).
Dr. Chris Simpson, CMA Annual General Council, August, 2015.
Session: Setting the Context for a Principles Based Approach for Assisted
Dying in Canada (video) 0:01:45-0:01:55
Downar J, Bailey M, Kagan J, Librach LS.
Physician-assisted death: time to move beyond Yes or No. CMAJ
2014 May 13; 186
(8):567-568; DOI:
https://doi.org/10.1503/cmaj.140204
(Accessed 2018-06-15).
"The question of neutrality has
been profoundly obscured by the mistake of confusing neutrality with
objectivity... neutrality and objectivity are not the same...
objectivity is possible but neutrality is not. To be neutral, if that
were possible, would be to have no presuppositions whatsoever. To be
objective is to have certain presuppositions, along with the manners
that allow us to keep faith with them." Budziszewski J.
"Handling
Issues of Conscience." The Newman Rambler, Vol. 3, No. 2,
Spring/Summer 1999, P. 4.
8.
World Medical Association Revision of WMA
Declaration of Oslo on Therapeutic Abortion (2006), Appendix "D": Mandatory Referral - From Abortion to Euthanasia
VII.5 Arguments offered
VII.5.1 The sole justification offered for the change
is that 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."(VI.3.4).
VII.5.2 This justification, proposed as if
self-evident, actually consists of contested autonomy based rights claims
that have grave implications for physicians, inasmuch as they imply a
professional obligation to kill (VI.3.5,
VI.3.6,
B10.5). To accept
contested rights claims as sufficient justification for the proposal would
disenfrancise those who hold contrary views.
VII.5.3 The proposal is presented as a kind of neutral option that
does not require the WMA to support euthanasia or physician assisted
suicide, does not involve significant change, and would affect only
physicians legally providing the services by relieving them of accusations
of unethical conduct.
VII.5.4 However, the proposed change is not ethically neutral.
Notwithstanding the opening disclaimer, which is a bare and inefficacious
assertion that has no necessary ethical significance (VI.4.5, VI.4.6),
it implies that euthanasia and assisted suicide are consistent with medical
ethics, or at least not so inconsistent as to preclude them being provided
by physicians, even if ordinarily inadvisable (VI.4.5,
VI.4.10).
VII.5.5 Certainly, the foundational statement would prevent the WMA
from condemning Dutch or Canadian physicians who provide euthanasia or
assisted suicide for unethical conduct, which, according to the CMA, is the
sole reason for seeking the change (III.4.3,
III.4.11,
VII.1.2).
VII.5.6 However, the
change in position signified by the foundational statement would also have
worldwide implications because it would entail a meaningful ethical shift by
an international opinion leader. It could reasonably be expected to
influence physicians, other healthcare workers, the public and lawmakers
around the world in favour of the procedures (VII.3.6.4,
VII.3.6.5).
VII.5.7 Moreover, the completely unrestricted nature of
the foundational statement (VII.1.3,
VII.1.4, VII.1.7) commits the
WMA to tolerating the legalization and practice of euthanasia and assisted
suicide on the broadest possible terms.
VII.5.8 Patient priority, autonomy, and the importance
of compassion are widely understood to be central to medical practice, and
the CMA's Dr. Francescutti alluded to this when he warned the WMA Council
that they "would not serve their patients well" by refusing to heed public
opinion about assisted suicide (VII.3.4.1).
Upon these grounds, those uncertain about the morality/ethics of the
procedures are likely to give the benefit of their uncertainty to patients clearly
seeking the services and physicians willing to provide them by supporting
legalization and by referring patients to willing colleagues (VI.3.4.3).
VII.5.9 However, even if one accepts principles of
patient priority, autonomy and the importance of compassion, it does not
follow that one must conclude that euthanasia and assisted suicide are
morally/ethically acceptable, or that the moral/ethical nature of the
practices is uncertain. Philosophical, moral or ethical arguments to
the contrary can be rationally advanced and defended without denying patient
priority and the need for compassion (VI.3.4.2,
B8.2).
VII.5.10 What has been said of patient priority, autonomy,
and compassion is also true of other principles like respect or reverence for
human life, beneficence, non-maleficence and justice. Positions for and
against euthanasia and assisted suicide, when firmly held and rationally
defended, usually rest upon different interpretations or understandings of such
principles.
VII.5.11 Dr. Blackmer describes
such differences as the problem of intractability (IV.3.13-14),
which the CMA and RDMA urge the WMA to solve by setting them aside (VII.3.5).
"T]he way forward," Dr. Blackmer says, "is not to engage in further debate
on the rightness or wrongness of assisted dying,"4
but, as CMA President Dr. Chris Simpson put it, to
"[move] away from a yes-no dichotomy, as to whether assisted dying
should be legalized toward a more balanced and nuanced discussion."5
VII.5.12 While urging the WMA to take this path
forward, Dr. Blackmer does not say where the path leads. Dr. Simpson
suggests it leads to "a more balanced and nuanced discussion," but does not
say what the discussion is about. The answer is found in an editorial
in the Canadian Medical Association Journal: Physician-assisted death: time to move beyond Yes or No.
"Whether or not physicians individually or collectively agree with
physician-assisted death," wrote the autors, "[i]t is time for the "yes" or
"no" debate to give way to a constructive dialogue about policies and
guidelines for legal physician-assisted death," including such things as
eligibility, consent, equitable access, effective methods, and the
obligations of conscientious objectors.6
VII.5.13 In other words, the CMA and RDMA want moral
and ethical debate about physician participation in euthanasia and assisted
suicide to end, and practical discussion about how physicians should provide
the services to begin. This seems to be what the CMA meant when it
suggested the WMA consider "a more nuanced approach" to assisted suicide (II.1.2).
VII.5.14 Dr. Blackmer's "way forward" is to nullify
continued opposition on moral/ethical grounds. Dr. Simpson provides
balance and nuance to the "yes" or "no" debate by eliminating the "no." The
CMA approach exemplifies what Project Advisor
Jay Budziszewski calls "bad faith authoritarianism . . . a dishonest way of
advancing a moral view by pretending to have no moral view."7
VII.5.15 In this case, "unreflective" may be more
fitting than "dishonest." In any case, without reference to ethics of
some sort, the WMA cannot follow Dr. Blackmer's advice to decide how to
respond to legalization of physician assisted suicide and euthanasia. The CMA did
not set ethics aside when it purported to unite the Canadian medical profession behind the
view that euthanasia and physician assisted suicide can be legitimate forms
of medical treatment (B9) -
hardly an ethically neutral viewpoint. Later the CMA did, indeed,
delete references to ethical and even medical criteria from its policy on
euthanasia and assisted suicide (VI.4.25),
but this means only that the CMA has chosen the law as its ethical standard,
not that it has dispensed with ethics altogether.
Disagreement/lack of consensus
VII.5.16 The appeal to pragmatism is the CMA/RDMA
reaction to what they perceive to be an obstacle created by particularly
stubborn disagreement or lack of consensus, an obstacle to be bypassed by
the assumption that their moral/ethical viewpoint is correct. Can they
plausibly cite lack of consensus, not as an obstacle, but as a reason to
support their proposal? (VII.3.7.1,
VII.3.7.2)
VII.5.17 This seems unlikely, since the CMA/RDMA
proposal itself is based upon contested rights claims for which no consensus exists
(VII.2.1, VII.2.2). Further, the argument is not tenable for two
practical reasons.
VII.5.18 First: the result of the four regional
meetings provides evidence that, at least with the WMA, there is a consensus
that euthanasia and assisted suicide are morally or at least ethically
unacceptable (III.1.2).
Thus, the CMA and RDMA can appeal, at best, only to the fact that some
physicians disagree with the WMA, and the mere existence of disagreement
within an organization does not warrant a change of policy.
VII.5.19 Second: WMA ethics policies are based, not on
lack of consensus, but upon a consensus identified by 75% approval (VII.3.7.4).
The CMA and RDMA may eventually succeed in achieving this, or they may
succeed in convincing the WMA that the standard should be changed to make it
more likely that their proposal will be accepted (VI.3.7.5)
but have not yet done so.
VII.6 Conclusions
VII.6.1 Justification offered for the proposal rests
upon contested rights claims.
VII.6.2 The opening disclaimer of non-support for
euthanasia and assisted suicide is a bare and inefficacious assertion that
has no necessary ethical significance.
VII.6.3 Notwithstanding the opening disclaimer and
arguments offered, the CMA/RDMA proposal, if accepted, would substantially
shift WMA policy in favour of legalization of euthanasia and physician
assisted suicide in accordance with the proposal. It would commit the
WMA to tolerating the legalization and practice of euthanasia and assisted
suicide on the broadest possible terms.
VII.6.4 The shift in WMA policy in accordance with the
proposal would not exclude physician provision of euthanasia and assisted
suicide for
- any legally valid reason, including non-terminal chronic conditions
or disabilities, even in the absence of pain or suffering
- any class of patients defined by law, including adolescents, children and infants, and incompetent and mentally ill
patients.
VII.6.5 The shift in WMA policy in accordance with the
proposal
- would not require the provision of adequate palliative care as a
prerequisite for euthanasia and assisted suicide, and
- would not preclude the provision of euthanasia and assisted suicide
as alternatives to palliative care and ordinary medical treatment.
VII.6.6 The shift in WMA policy could reasonably be
expected to cause physicians, other healthcare workers, the public and
lawmakers around the world to favour legalizing the procedures in accordance
with the proposal.
VII.6.7 The shift in WMA policy in accordance with the
proposal would make legislatures and courts responsible for establishing
ethical and legal criteria for euthanasia and assisted suicide.
VII.6.8 The protection of conscience provision is
generally commendable. However, it is insufficiently developed to
withstand challenges it is likely to meet in practice. It is not actually supported
by one of the authors of the proposal.
VII.6.9 The argument that the irreconcilable
moral/ethical debate about euthanasia/assisted suicide should be solved by
setting moral/ethical issues aside is manipulative and self-contradictory.
VII.6.10 An argument supporting the proposal by an
appeal to lack of consensus would be inconsistent with the sole
justification offered for it, for which there is no consensus. It would
also conflict with the WMA standard for identifying consensus.
VII.1.4 Were the WMA to adopt the recommended policy
statements, it would unconditionally affirm the acceptability of euthanasia
and assisted suicide on the broadest terms. This would encourage
legalization of the procedures, jeopardizing freedom of conscience for the
majority of physicians in affected jurisdictions.
VI.4.20 While the protection
of conscience provison is
generally commendable, the rationale supporting it is not articulated or
clear from other WMA policy. Given the challenges it will face, it is
not at all certain that it would actually provide adequate protection for physicians.
In fact,
the RDMA, one of the authors, already contradicts it by demanding that
objecting physicians refer patients for euthanasia, even though Dutch law
does not require it (IV.3.6).
VI.4.18 While this is a sound approach,
and the protection of conscience provision is generally commendable, it has
been rejected by Canada's largest medical regulator.
VI.4.19 This reflected the effects of a sustained campaign to compel physicians to
refer for other morally contested services like abortion, which, in effect, has been a dress rehearsal to compel them to refer for euthanasia and
assisted suicide. The reasoning used to justify the former is also
used to justify the latter. This is abundantly clear from the Canadian
experience.23 The College of Physicians
and Surgeons of Ontario imposed mandatory referral for all morally contested services
except euthanasia and assisted suicide in 2015,24
and extended the policy to include euthanasia and assisted suicide in 201625
because "there was no qualitative difference" between euthanasia and
assisted suicide "and other health care services."26
VI.5.1
The CMA and RDMA foresee no effects flowing from the change of
WMA policy on euthanasia and assisted suicide, but "speaking points would
need to be prepared for elected leaders in the case of public/media
interest." This is an exceptionally unrealistic assessment of the
consequences of accepting the proposal and the level of interest that it
would attract. The adoption of a very similar motion by the CMA was
widely considered to be an "overwhelming change;" the CMA president called
it a "sea change," even before the CMA Board of Directors reversed
Association policy against the procedures (B7.11). Analogous changes to WMA policy on
capital punishment (VI.4.8) or female genital mutilation
(VI.4.9) would be seen as major policy changes that
would have a significant impact on medical practice in many countries, and
would attract enormous attention worldwide.
VI.4.12 In Canada, euthanasia and assisted suicide are
available for psychiatric patients suffering from other irremediable
disorders, and (as Dr. Blackmer acknowledges) the possibility of providing
euthanasia and assisted suicide for mature minors and as a therapeutic
intervention to relieve suffering caused by psychiatric disorders and
dementia is being considered. Recall that de Jong and van Dijt admit
that euthanasia can be provided in the Netherlands for those with dementia
and psychiatric diseases, and even for those with whom the physician "cannot
communicate adequately," though they say the latter cases are rare and
"highly controversial."18
VI.5.3 According to then CMA President Dr. Chris
Simpson, the CMA had learned from studying other jurisdictions that
legalizing assisted suicide and euthanasia led to "changes in the medical
culture" so that "there is general, overall comfort" with the law. "And
where it works best, of course, and where it is the case everywhere as far
as I’m aware," he said, "is that only physicians who have particular
expertise in, in doing this and, and have a moral and ethical framework that
allows them to do it is where it works well."34
VI.5.4 Legalization of euthanasia
and assisted suicide and the accompanying change of "medical culture" would
expose the overwhelming majority the world's physicians represented by WMA
members to demands that could generate serious conflicts of conscience and
ultimately place those unwilling to collaborate in serious professional
jeopardy. This is the case in Canada, where physicians in some
provinces face discipline and even expulsion from the profession if they
refuse to refer patients for the procedures.25
the CMA is asking the WMA to follow its example by entrusting legislatures and
courts with responsibility for legalizingand establishing the medical and ethical criteria for euthanasia and
assisted suicide (B9.4,
VI.4.24),1,2 even at the cost of
moral angst among physicians (B10.11)
and at the risk of unpredictable results (B10.11,
B10.12) beyond the control
of the medical profession (B10.13).
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.
WMA Declaration of Venice on Terminal Illness.
Adopted by the 35th World Medical Assembly, Venice, Italy,
October 1983 and revised by the 57th WMA General Assembly,
Pilanesberg, South Africa, October 2006
(Accessed 2018-06-02).
4.
WMA Declaration on End-of-Life Medical Care.
Adopted by the 62nd WMA General Assembly, Montevideo,
Uruguay, October 2011
(Accessed 2018-06-02).
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.
7. Murphy S.
Euthanasia reported in Belgium: statistics compiled from the Commission
Fédérale de Contrôle et d' Évaluation de l'Euthanasie Bi-annual Reports.
Protection of Conscience Project. August, 2017.
8. Murphy S.
Euthanasia reported in Netherlands: statistics compiled from the
Regional Euthanasia Review Committees' Annual Reports. Protection of
Conscience Project. August, 2017.
9. Murphy S.
Assisted suicide reported in Oregon, U.S.A.: statistics compiled from
the Oregon Public Health Division annual Death with Dignity Act reports.
Protection of Conscience Project. August, 2017.
10. 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. Protection of Conscience Project. August,
2017.
11. 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. 5 August, 2017 (Accessed 2017-08-23).
12. Hune-Brown N.
How to End a Life. Toronto Life. 23 May, 2017. Accessed 2017-08-29.
13. 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: Table 3.2: Profile
of Medical Assistance in Dying by Jurisdiction/Region (Accessed
2017-10-09).
14. There were about 29,500 MDs in active
practice in the province. See College of Physicians and Surgeons of
Ontario.
2016 Annual Report. Toronto: p. 7 (Accessed 2017-10-03).
15. Jeff Blackmer@jblackmerMD (15 November, 2017
at 11:29 pm)
(Accessed
2018-05-15).
16.
World Medical Association. MEC 209/ Therapeutic Abortion
REV4/Apr2018: Proposed WMA Statement on Medically-Indicated Termination
of Pregnancy (April, 2018).
17.
18.
19. de Jong A, van Dijt G.
Euthanasia in the
Netherlands: balancing autonomy and compassion. World Medical Ass J.
2017 Oct 63(3)10-15 (Accessed 2018-05-24).Savulescu J, Schuklenk U.
Doctors have
no right to refuse medical assistance in dying, abortion or
contraception. Bioethics 2017;31(3):162-170
(Accessed 2018-06-04).
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.
21. Murphy S. Canadian Medical Association
and euthanasia and assisted suicide in Canada: Critical review of
CMA approach to changes in policy and law.
Part I:
Preliminaries to Carter - A professional obligation to kill.
Protection of Conscience Project (September, 2018).
22.
23. See World Medical Association, Revision of
WMA
Declaration of Oslo on Therapeutic
Abortion (2006):
Appendix "D" - Mandatory Referral - From Abortion to Euthanasia.
24. College of Physicians and Surgeons of
Ontario.
Professional Obligations and Human Rights (March, 2015), p. 5 (Accessed
2018-06-13).
25. College of Physicians and Surgeons of Ontario.
Medical Assistance in Dying (July, 2017) (Accessed 2018-06-13).
26.
The
Christian Medical and Dental Society of Canada v. College of Physicians and
Surgeons of Ontario, 2018 ONSC 579 (Can LII), para. 169, p. 33
(Accessed 2018-06-15).
27. In the SCC on appeal from the BCCA,
Factum of the Intervener, The Canadian Medical Association (27 August,
2014).
28. Geddes J.
Interview: The CMA’s
president on assisted dying. Macleans, 6 February, 2015 [Geddes] This part
of the interview is not included in the edited published transcript,
but can be heard on the
linked audio file (02:43-03:25)
(Accessed 2018-06-04).
29. Canadian Medical Association.
Medical
Assistance in Dying (May, 2017) [CMA-MAID 2017] (Accessed 2018-06-01).
30. "The CMA recognizes that it is the
prerogative of society to decide whether the laws dealing with euthanasia
and assisted suicide should be changed." Canadian Medical Association, CMA
Policy: Euthanasia and Assisted Suicide (Update 2014) (p. 3).
31. Dr. Blackmer, referring to the Supreme Court
decision ordering the legalization of euthanasia and physician assisted
suicide, said, "Many doctors do not like the decision and that is OK, but
ultimately it is society, through its elected representatives and courts
that is making these rules and decisions. Basically, the profession is
saying OK, whether you agree with this or not, the SCC has ruled, so the
time for that discussion has passed and now we need to make sure that we
help the government get it right." Santi N.
From Courtroom to
Bedside - A Discussion with Dr. Jeff Blackmer on the Implications of Carter
v. Canada and Physician-Assisted Death. UOJM 2015 May; 5(1) (Accessed 2015-07-04).
32. "The judicial and legislative branches of
government have made changes to Canadian law in this area. Society has
placed assistance in dying within the realm of regulated medical
practitioners." CMA-MAID 2017, p. 1.
33.
Geddes.