Legal Commentary

Re: Carter v. Canada

Legalizing therapeutic homicide and assisted suicide:  
A tour of Carter v. Canada

• Sean Murphy* | The trajectory of the trial was determined by the unchallenged fundamental premise that suicide can be a rational and moral act, and that the sole purpose of the law against assisted suicide is to prevent suicides by vulnerable people in moments of weakness, who might be tempted to commit suicide that is not rational and moral. The only issue was whether or not safeguards could be designed to permit legitimate access to assisted suicide, while preventing the vulnerable from accessing it in moments of weakness. . .
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Project Backgrounder
Re: Joint intervention in Carter v. Canada
Supreme Court of Canada, 15 October, 2014

• In June, 2012, a British Columbia Supreme Court Justice ruled in favour of physician assisted suicide and euthanasia. The plaintiffs appealed to the Supreme Court of Canada.
• The Catholic Civil Rights League, Faith and Freedom Alliance and the Protection of Conscience Project were jointly granted intervener status in Carter by the Supreme Court of Canada.  The joint factum voiced concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care workers who object to the procedures for reasons of conscience.  The factum was supplemented by a ten minute oral presentation.
  Factum | Backgrounder

Supreme Court of Canada orders legalization of physician assisted suicide - AND euthanasia
Physicians unwilling to kill already face demands that they find someone who will

• Sean Murphy* | In a 9-0 ruling released on 6 February, 2015, the Supreme Court of Canada struck down two sections of Canada’s Criminal Code "insofar as they prohibit physician-assisted death" in circumstances outlined by the Court. It appears that most or all of the major media outlets understood this to mean that the Court had legalized physician assisted suicide. . . the ruling not only permits physician assisted suicide, but physician administered euthanasia. . .
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Decriminalization of assisted suicide and the violation of our rights

• Albertos Polizogopoulos* | In October, the Supreme Court of Canada heard the Carter case, where parties are challenging Criminal Code prohibitions on physician assisted suicide in the hopes of decriminalizing it. If they're successful, it will impact more than just physicians. . .
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Amir Attaran and the elves
A law professor makes much ado

• Sean Murphy* |  . . . University of Ottawa law professor Amir Attaran asserts that the "corrosive hostility" of the Canadian Medical Association to "physician-assisted dying" is evident in its "cowardly and stupid" position on the procedure. . . In his telling, ever since the Court ignored the threat and struck down the law, the CMA has been acting like a "sore loser," trying to persuade physicians not to participate. . . And he complains that the CMA won't force physicians unwilling to kill patients or help them commit suicide to find someone who will. . .
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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* |  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. . .
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To kill — or not to kill? That is the question.
An answer for a Dying With Dignity clinical advisor

• Sean Murphy* | . .the DWD Clinical Advisor was exasperated by the description of euthanasia and assisted suicide as "killing." This, he/she exclaims, is a malicious lie that adds to the world's misery.  Such a cri de cœur calls for a thoughtful discussion of the question it raises. Does providing euthanasia and assisted suicide entail killing — or does it not?
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Jewish physicians' freedom of conscience and religion and the Carter Case

• Charles Wagner*, Adam Hummel* | How does the decision in the Supreme Court of Canada (SCC) in Carter v. Canada (Attorney General)1 ("Carter") impact on the religious Jewish doctor? Will this landmark decision bring into conflict these doctors' freedom of conscience and religion with their professional obligations? The Carter case sets aside federal criminal laws as they relate to physician assisted suicide. It stands for the proposition that individuals who are suffering unbearably have a constitutional right to a physician-assisted suicide.
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Re: "Abortion: Ensuring Access"

• In July, 2006, the Canadian Medical Association Journal published a guest editorial by Sanda Rodgers of the Faculty of Law, University of Ottawa, and Jocelyn Downie, of the Health Law Institute, Dalhousie University, Halifax, Nova Scotia.  The editorial appears to have been an attempt to bully objecting physicians who refuse to refer patients for abortion by menacing assertions about legal and ethical obligations.  The CMAJ is a publication of the Canadian Medical Association, which, however, asserts that its contents do not necessarily represent the views of the Association.
  Commentary (Ethics)

Re: Draft Code of Ethics for Pharmacists and Pharmacy Technicians

Yet More Pharmacists Who Don't Understand Ethics:  This Time Ontario

• Iain T. Benson* | . . . For pharmacists and pharmacy technicians the accommodation of religious belief and conscience guaranteed by Section 2 of the Canadian Charter of Rights and Freedoms will be suspended should this principle go ahead as drafted. This is not the approach taken by doctors and the Canadian Medical Association would not endorse this blunt and unfair kind of principle. . .
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Letter to Minister of Health (Ontario)

• Protection of Conscience Project | . . .I understand that the Ontario College of Pharmacists has made a recommendation to the OHPRAC to the effect that freedom of conscience ought to be denied to pharmacists and pharmacy technicians. I am advised by concerned pharmacists that those who would have objected to this were unaware that the College was contemplating such a recommendation and were not consulted about it. . .
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Re:  "Physicians and the Ontario Human Rights Code"

Ontario Human Rights Commission attempts to suppress freedom of conscience

• Sean Murphy* | The College of Physicians and Surgeons of Ontario is the regulatory and licensing authority for physicians and surgeons practising in Ontario, Canada.  In February, 2008, the Ontario Human Rights Commission recommended that the exercise of freedom of conscience by physicians be restricted.  The College then drafted a policy that demanded that Ontario physicians sacrifice their freedom of conscience to avoid prosecution by Ontario's human rights apparatus.
  Commentary (Ethics)

Re:  College of Physicians and Surgeons of Ontario and "effective referral"

Ontario court affirms right of state to compel participation in euthanasia
Doctors must refer patients for 'medical assistance in dying'

• Michael Cook* | Back in 2006, Oxford University's Professor Julian Savulescu published a frontal attack on the notion of conscientious objection in medicine in the BMJ, a popular medical journal. At the time it seemed odd rather than dangerous, the dream of an ideologue rather than sober policy.  . . .
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With Ontario court's ruling on doctors, the revolution continues
There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

• Barry W. Bussey* | How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors' consciences was a "no-brainer." The law, history, and basic human decency cried out: "Accommodate the physician!" Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. . .
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Forced Referral and Freedom of Religion vs Freedom of Conscience
Without freedom of conscience our free democracy would not exist

• Shawn Whatley, MD* | A recent court decision in Ontario missed the mark when it ignored the impact forced referral has on freedom of conscience.  On May 15, the Ontario appeals court ruled that doctors must give patients a referral for euthanasia, abortion, and other contentious issues, regardless of what an individual doctor thinks about them. . .
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Physicians in Canada should be moral actors, not robotic bureaucrats
Doctors should not be obliged to write referrals for procedures they find morally objectionable

• Brian Bird* | Earlier this week, Ontario's highest court heard a case that pits access to health care against the moral convictions of doctors. The case essentially tests the extent to which Canadians can follow their own moral compasses while operating in a professional capacity.  In Ontario, doctors can refuse to perform procedures or prescribe drugs that they consider immoral. However, the public body that regulates these doctors – the College of Physicians and Surgeons of Ontario (CPSO) – requires them to refer patients to doctors who are willing and able to provide the requested health care service. . .
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Understanding Freedom of Conscience

• Brian Bird* | A court case dealing with freedom of conscience gives rise to questions about what freedom of conscience protects and why we protect it. . . . Balancing physicians' freedom of conscience with patients' access to medical services is a delicate task. But that balance will certainly not be struck if, when it comes to freedom of conscience, we do not know what we are talking about or why it matters.
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Physicians, conscience, and assisted dying:
By requiring that physicians make referrals for assisted dying, Ontario is forcing them to leave medicine or abandon their ethical framework.

• Deina Warren,* Derek Ross* | Of all the jurisdictions worldwide that permit some form of assisted suicide, Ontario stands alone in mandating that physicians participate in it. . . [C]ompelling physicians to participate in MAID results in the state deciding what everyone should believe; and second, it undermines physicians' moral integrity, a foundational component of medical ethics and principled health care. . .
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Ontario must amend its assisted dying legislation to recognize conscience rights

• John Milloy* | Canadians ask a lot of our physicians – years of education, long hours, complex cases and demanding patients (full disclosure – I am married to a doctor).  Since June of last year, we have also been asking them to help some of their patients take their own lives. . . Should we not respect the fact that some doctors and other health-care providers simply don't want to be involved in assisted dying for reasons of conscience?
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Re:  Redefining the Practice of Medicine

Euthanasia in Quebec
An Act Respecting End of Life Care (June, 2014)

• Sean Murphy* | Part 1: Overview - An Act Respecting End-of-Life Care ("ARELC") is intended to legalize euthanasia by physicians in the province of Quebec.  It replaces the original Bill 52, the subject of a previous commentary by the Project.  The original text of the Bill 52 did not define medical aid in dying (MAD), but ARELC now makes it clear that Quebec physicians may provide euthanasia under the MAD protocol.  . .
  Part 1
• Part 2: ARELC in detail - An Act Respecting End-of-Life Care ("ARELC") is intended to legalize euthanasia by physicians in the province of Quebec.  It replaces the original Bill 52, the subject of a previous commentary by the Project. ARELC purports to establish a right to euthanasia for a certain class of patients by including it under the umbrella of "end-of-life care." . . .
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• Part 3: Evolution or Slippery Slope? - Euthanasia laws frequently include guidelines and safeguards intended to prevent abuse.  Eligibility criteria are the most basic guidelines or safeguards.  In considering their stability, it is important to consider not only the elasticity of existing statutory provisions, but recommendations for expansion that might ultimately result in changes to the law. . .
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• Part 4: The Problem of Killing - The original text of Bill 52 did not define "medical aid dying" (MAD), but it was understood that, whatever the law actually said, it was meant to authorize physicians to kill patients who met MAD guidelines.  The Minister of Health admitted that it qualifed as homicide, while others acknowledged that MAD meant intentionally causing the death of a person, and that its purpose was death. . .
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• Part 5: An Obligation to Kill - Statistics from jurisdictions where euthanasia and/or assisted suicide are legal suggest that the majority of physicians do not participate directly in the procedures.  Statistics in Oregon and Washington state indicate that the proportion of licensed physicians directly involved in assisted suicide is extremely small. . .
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• Part 6: Participation in Killing - It appears that, even where euthanasia or assisted suicide is legal, the majority of physicians do not actually provide the services.  However, by establishing a purported legal "right" to euthanasia, ARELC generates a demand that physicians kill their patients, despite the high probability that a majority of physicians will not do so. . .
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• Part 7: Refusing to Kill - It is important identify problems that the Act poses for those who object to euthanasia for reasons of conscience, and to consider how objecting health care workers might avoid or respond to coercion by the government and the state medical and legal establishments . . .
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• Part 8: Hospitality and Lethal Injection - Under the Act Respecting End of Life Care (ARELC) palliative care hospices may permit euthanasia under the MAD protocol on their premises, but they do not have to do so.  Patients must be advised of their policy before admission.  The government included another section of ARELC to provide the same exemption for La Michel Sarrazin, a private hospital.  The exemptions were provided for purely pragmatic and political reasons. . .
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• Part 9: Codes of Ethics and Killing - Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is the response expected of physicians by professional bodies and regulators.  It is not clear that Quebec legislators or professional regulators understand this. . .
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• Quebec Euthanasia Guidelines: Practice guide issued by Quebec health care profession regulators (August, 2015)

Re:  PACE Report:
"The Problem of Unregulated Use of Conscientious Objection"

PACE Resolution on Restricting Conscientious Objection Endangers Freedom of Conscience of Medical Practitioners

• European Centre for Law and Justice* | . . .The ECLJ must warn the members of PACE that several recommendations of the resolution are direct and serious violations of the freedom of conscience of medical practitioners, as guaranteed by European and International law. . .
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Protection of Conscience Project Submission to the Parliamentary Assembly of the Council of Europe

• . . .Considering the Report from this broader perspective, as we do here, it becomes apparent that its recommendations are offensive to human freedom and dignity and repugnant to fundamental principles of liberal democracy. . .[
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Europe's Choice on Conscience Protection

• Matthew Schmitz* | This Thursday the Council of Europe . . .will vote on a resolution and series of recommendations on conscience protection. . . .It would create guidelines that encourage member states to force doctors to perform abortions in some circumstances and to make referrals for them in every circumstance. . . .it is an all-out assault on conscience and community. . .
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Philippines "RH Act" of 2012

• Sean Murphy* |  . . .  the RH Act would have made the exercise of freedom of conscience impossible or ridiculous, requiring objectors to invite public obliquy by false confessions of prejudice, in exchange for which the Act offers only counterfeit accommodation. Given the problems with the wording of other sections of the law, it is not clear whether this provision was deliberately constructed as an obstacle to conscientious objection, or if it was simply the product of appalling legislative draftsmanship. . .
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• Appendix "A" | The Philippines population grew from about 27 million in 1960 to over 100 million in 2018. However, from 1984 the rate of population growth decreased. By 2017 the Philippines' birth rate had fallen about 15% in 17 years, more than the reduction in the global birthrate. The Philippines fertility rate was halved between 1973 and 2013.
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• Appendix "B" | The "RH Act" (2012)  in brief |  Annotated Text of the Responsible Parenthood and Reproductive Health Act of 2012
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• Supreme Court of the Philippines Decision: 2014
  • Majority Opinion
  • Justice Teresita J. Leonardo-de Castro
  • Justice Roberto A. Abad
  • Justice Arturo D. Brion
  • Justice Mariano C. Del Castillo

Re: House of Lords Select Committee
on Assisted Dying for the Terminally Ill Bill

Selections from the First Report

In 2003 Lord Joffe introduced a private member's bill into Parliament, the Patient (Assisted Dying) Bill, which progressed only to second reading. In March of the following year he introduced another private member's bill (Assisted Dying for the Terminally Ill). It received Second Reading and was referred to a House of Lords committee for detailed examination.  Extracts concerning conscientious objection and freedom of conscience in witness testimony and written evidence are noted below.

Examination of witnesses

• All extracts
  
• PROFESSOR JOHN HARRIS, University of Manchester, PROFESSOR SHEILA MCLEAN, Glasgow university, DR EVAN HARRIS, a Member of the House of Commons, MISS DEBORAH ANNETTS, Chief Executive, Voluntary Euthanasia Society, and MR TL BARCLAY (Q1-19; Q20-27)
  
• LORD JOFFE: Explains amendment to remove requirement for referral by objecting physician. (Q70-79)
  
• Witnesses: DR MICHAEL WILKS, Chairman, Medical Ethics Committee, DR VIVIENNE NATHANSON, Director of Professional Activities, British Medical Association, PROFESSOR SIR GRAEME CATTO, President, and MS JANE O'BRIEN, Head of Standards, General Medical Council, examined. (Q281-299; Q300-319) (Q340-353)
  
• Witnesses: DR DAVID COLE, BARONESS GREENGROSS, a Member of the House, PROFESSOR RAYMOND TALLIS, DR GEORG BOSSHARD, and DR CAROLE DACOMBE, (Q1920-1939) (Q1940-1959)
  
• Witnesses: MS MICHELE WATES, DR JIM GILBERT, PROFESSOR JOHN FINNIS and DR FIONA RANDALL (Q2020-2039)

Written evidence

• Memoranda and Letters

The bill included an exemption for conscientious objectors (Clause 7) which required an objecting physician refer a patient to a colleague willing to process a euthanasia request. This elicited protests during the examination of witnesses and inwritten evidence and an adverse judgement from the Joint Committee on Human Rights, as a result of which Lord Joffe agreed to remove the provision for mandatory referral.

Clause 7 (from the Bill)

• Duties of physicians, and conscientious objection
  

From Chapter 4 (from the report)

•  Practical Issues: Conscientious Objection
  

From Chapter 7 (from the report)

• Conclusions:  Responsibilities of Physicians
  

Re: House of Lords & Commons Joint Committee On Human Rights

• Twelfth Report: Assisted Dying for the Terminally Ill Bill -Conscientious Objection