Redefining the Practice of Medicine
Euthanasia in Quebec
An Act Respecting End-of-Life Care (June, 2014)
Sean Murphy*
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.
Often for purely pragmatic reasons, euthanasia supporters do not
usually insist that an unwilling physician should be compelled to
personally kill a patient. Thus, the difficulty created by the law
can be addressed by administrative measures that connect patients
looking for euthanasia with the minority of physicians willing to
provide it. Nonetheless, physicians who object to euthanasia for
reasons of conscience will likely be expected to facilitate access to
the procedure by helping the patient find a colleague willing to provide
it.
However, objecting physicians not only refuse to kill patients, but also often refuse to do anything
that they believe makes them morally responsible for the killing. This
includes actions that indirectly support or facilitate it. Hence, it is likely that most of the attacks on freedom of conscience
resulting from ARELC will be precipitated, not by a refusal to kill directly,
but by this kind of refusal to participate indirectly in killing.
The Criminal Code demonstrates that a physician who refuses to facilitate the killing of a
patient because he does not want to be a culpable participant in killing
is acting well within well-established moral and legal norms reflected in
our criminal law. Further, the polices of professional medical
organizations that forbid physician participation in
capital punishment, torture, and female genital cutting indicate that it is not unreasonable for objecting physicians to
refuse to facilitate euthanasia even indirectly.
On the contrary: refusing to participate, even indirectly, in conduct
believed to involve serious ethical violations or wrongdoing is not
aberrant behaviour. It is the response expected of physicians by
professional bodies and regulators in order to avoid physician
complicity in such procedures.
It appears that, even where euthanasia or assisted suicide is legal, the
majority of physicians do not actually provide the services, and the number
of physicians who actually kill patients or write prescriptions for lethal
drugs or provide second opinions in support of euthanasia can be very small. Further, often for purely pragmatic reasons,
euthanasia supporters do not usually insist that an unwilling physician
should be compelled to personally kill a patient.1
However, by establishing a purported legal "right" to euthanasia, ARELC generates
a demand that physicians kill their patients in accordance with MAD
guidelines, despite the high probability that a majority of physicians will
not do so. One response to this difficulty - a difficulty
created solely by the law - is to connect patients looking for euthanasia
with the minority of
physicians willing to provide it. We have seen some of the
suggestions: advance identification of willing physicians in each region,
the use of electronic communication services to permit remote consultation
and the establishment of mobile "flying squads" of euthanatists to provide
services not otherwise available in some parts of the province (Part 5).
Such systems require not only the services of physicians willing to
perform MAD procedures, but of many other people who will be expected to
conform to the "new normal" by providing the logistical and administrative
support necessary to make them work. Of course, one would expect this kind of help to be provided by the
Quebec government and by those who support euthanasia and assisted suicide,
like the Association for the Right to Die with Dignity and the various
groups or individuals who spoke in favour of euthanasia during the
legislative committee hearings in the fall of 2013. One might also
anticipate this kind of help from physicians who would be uncomfortable
lethally injecting a patient, but who have no objection to it being done by
someone else.
But ARELC demands more than this. By purporting to establish
euthanasia as a "right," it also purports to impose obligations, the first
of which is simple non-interference: an obligation not to obstruct.
Unfortunately, what counts as "obstruction" is the subject of activist
polemics, who are bent on transforming an obligation not to obstruct into an
obligation to facilitate. This leads to a demand that physicians who
object to euthanasia for reasons of conscience facilitate access to the
procedure by helping the patient find a colleague willing to provide it.
Note, for example, the Quebec Association for the Right to Die with Dignity assured
Dr. Bolduc that it had no intention of forcing objecting physicians to
kill patients themselves,2 but no assurance was given
that they would not be compelled to participate indirectly in
killing, in ways like those identified by the American Medical Association in its
prohibition of physician participation in executions.3
"The
serious moral burdens of complicity"
It is here that we encounter the most common kind of conflict likely to
be caused by ARELC. It is unlikely that a
physician who refuses to personally kill a patient for reasons of conscience will be
prosecuted by state or professional authorities, since the practical
competence of such a physician would be in doubt, and coercion of that kind
would be politically unwise and counterproductive.
On the other hand, physicians who object to euthanasia for reasons of
conscience not only refuse to kill patients, but often refuse to do anything
that they believe makes them morally responsible for the killing. This
includes actions that support or facilitate it - such as encouraging or
affirming a patient's desire to be killed, or helping to find someone to do
it. As Holly Fernandez Lynch noted in her book, Conflicts of Conscience in
Health Care: An Institutional Compromise, such actions impose "the
serious moral burdens of complicity."4
It is thus likely that most of the attacks on freedom of conscience
resulting from ARELC will be precipitated, not by a refusal to kill directly,
but by refusal to participate indirectly in killing.
Are such refusals reasonable? If so, what might
reasonably be considered to be "indirect participation"?
Answers to both questions are readily available from different sources,
the first of which is Canada's Criminal Code. The Criminal Code remains in force despite ARELC, so it is both
convenient and appropriate to use it to demonstrate that the concept of
indirect participation is reasonable, and to illustrate what kinds of
actions can
be considered indirect participation in killing.
The
Code describes anyone who participates in a crime as a "party to an offence." Applying Code's definition of "party" to lethally injecting a patient
pursuant to ARELC, "party" would include
- the person who injects the patient,5
- anyone who does or omits to do anything for the purpose of helping
someone perform the lethal injection,6
- anyone who encourages, instigates, promotes or arranges it,7
- anyone who counsels, procures, solicits or incites someone to
provide it.8
Within the context of ARELC, the participants in lethal injection would include (1) the
injecting physician, (2) the pharmacist dispensing the drug and the nurse
preparing the needle, (3) a family member or referring physician, and
(4) the executive director of an institution or local authority who arranges
for a willing physician to replace an objecting physician. A plan to lethally inject a patient constitutes a conspiracy among all
who agree to it, each of whom (like members of an institutional ethics
committee) is a participant in a conspiracy.9
The Criminal Code is concerned with criminal complicity or
criminal culpability, which are narrower concepts than moral
complicity or culpability. Nonetheless, it demonstrates that the
concept of indirect participation is well-recognized and
undisputed. A physician who refuses to facilitate the killing of a
patient because he does not want to be a culpable participant in the killing
is acting well within well-established moral and legal norms reflected in
our criminal law.
While these references to criminal law are clear and convenient, it is
appropriate to supplement them by reflecting on the concept of morally
significant participation in killing within the context of medical ethics.
In October, 2012, the World Medical Association (WMA) reaffirmed its position
that physician must not "participate in capital punishment, in any way, or
during any step of the execution process, including its planning and the
instruction and/or training of persons to perform executions", adding that,
they must not "facilitate the importation or prescription of drugs
for execution" (emphasis added).10
The WMA did not define "participation." However, it is obvious that
the statement reaffirmed was meant to include acts contributing even
indirectly to an execution, and this was further emphasized by the additional
proscription of "facilitating" drug importation or prescription.
The policy of the American Medical Association
forbids physician participation in capital punishment. We are
not concerned here with the morality of capital punishment or even with the
morality of physician participation in executions. What is of interest
is the discussion of "participation," which is obviously
intended to mean morally significant participation. The
policy and supporting documents demonstrate that participation becomes
morally significant to the extent to which one's actions contribute to and
thus make one complicit in what follows from them. With respect to
participation in executions, this
includes:
(1) an action which would directly cause the death of the condemned;
(2) an action which would assist, supervise, or contribute to
the ability of another individual to directly cause the death of the
condemned;
(3) an action which could automatically cause an
execution to be carried out on a condemned prisoner.
Among the actions identified by the AMA as "participation" in executions
are
- prescribing or administering tranquillizers or other drugs as part of
the procedure,
- directly or indirectly monitoring vital signs,
- rendering
technical advice or consulting with the executioners,
- selecting injection sites; starting intravenous lines as a port for
a lethal injection device; prescribing, preparing, administering, or
supervising injection drugs or their doses or types; inspecting,
testing, or maintaining lethal injection devices; and consulting with or
supervising lethal injection personnel;
- attending or observing an execution, except at
the request of the condemned, or in a non-professional capacity.
The attention paid to what others might consider insignificant
participation is exemplified in the provision that permits physicians to
certify death, providing that death has been pronounced by someone
else, and by restrictions on the donation of organs by the deceased.11
Recall that our interest here is not in the morality of capital
punishment or euthanasia, but in the meaning of morally significant
participation. This interest can be pursued further by considering
participation in torture.
In the weeks following the terrorist attacks on the United States in
September, 2001, Newsweek columnist Jonathon Alter argued that it was time
to think about torturing terrorist suspects who might have information about
plans for such horrendous crimes. He acknowledged that physical torture was
"contrary to American values," but argued that torture is appropriate in
some circumstances, and proposed a novel 'compromise:' that the United
States turn terrorist suspects who won't talk over to "less squeamish
allies,"12
a practice known as
"extraordinary rendition." The allies would then do what Americans would
not, without compromising American values.
Less than a year later, Canadian citizen Maher Arar, returning home from
Zurich through New York, was detained, interrogated and "rendered" to Syria
by U.S. authorities.13
In Syria he was imprisoned
for almost a year,
"interrogated, tortured and
held in degrading and
inhumane conditions."14
A commission of inquiry was appointed to investigate the actions of Canadian
officials because, unlike Jonathon Alter, most Canadians did not believe
that referral to "less squeamish allies" could absolve one of moral
responsibility for torture.
Even though Mr. Arar's deportation to Syria was effected by the United
States, and Syrian officials imprisoned and tortured him, the public and the government
wanted to know whether or not Canadian officials had caused or contributed to what happened
to Mr. Arar. The key issue was whether or not Canada was complicit in
torture - even indirectly. The report of the Inquiry made this
abundantly clear: "Canada should not inflict torture, nor should it be
complicit in the infliction of torture by others."15
If it is determined that there is a credible risk that
the Canadian interactions would render Canada complicit in torture or
create
the perception that Canada condones the use of torture,
then a decision should be made that no interaction is to take place
(emphasis added).16
Thus far,
government officials. But
the problem of complicity
does not relate only to
government officials. The
Lancet, among others, has
asked, "How complicit are
doctors in the abuse of
detainees?"17
and other journal articles
have explored the answer
with some anxiety.18
The Arar Inquiry and the alarm raised about physician complicity
in torture make sense only if it is agreed that facilitating an act done by
someone else makes one morally responsible for it: a participant in the act,
as it were: in the words of the Criminal Code, a party to
it. This is the principle underlying the
prohibition of physician participation in capital punishment by the World
Medical Association and American Medical Association, and it is also the basis for
their prohibition of
physician participation in torture.
The WMA states that a physician must not "countenance, condone or
participate in the practice of torture," "provide any premises, instruments,
substances or knowledge to facilitate the practice of torture" and must not
even be present "during any procedure during which torture or any other
forms of cruel, inhuman or degrading treatment is used or threatened."19
The AMA states that participation
in torture includes, but is not limited to, "providing or withholding any
services, substances, or knowledge to facilitate the practice of torture."20
Similarly, the Canadian Medical Association opposes physician involvement in
the punishment or torture of prisoners. The CMA states that physicians
"should refuse to allow their professional or research skills to be used in
any way" for such purposes.21
Female genital cutting (also known as female circumcision) is a ritual
practice that involves excising, infibulating or mutilating the labia
majora, labia minora or clitoris, usually of girls four to eight years old.
It is a criminal offence in Canada, a form of aggravated assault.22
Consistent with the criminal law, the College of Physicians and Surgeons of Ontario
prohibits physicians from performing female genital cutting, and also
forbids referral for the practice: "The performance of, or referral for,
FGC/M procedures by a physician will be regarded by the College as
professional misconduct."23
This is formal acknowledgement by a state regulatory authority that
facilitating an act - in this case by referral - makes one complicit in it.
Indeed, the policy makes no distinction between performance and referral;
both amount to professional misconduct.
It might be argued that the College prohibition of referral merely
reflects the criminal prohibition of aiding or abetting (discussed above).
However, ethical misconduct is distinct from criminal law; the College was
free to draw the attention of physicians to the law against female genital
cutting without also declaring it to be professional misconduct.
Moreover, while the policy document cautions physicians about legal issues,
it introduces the topic within the context of adverse health outcomes, and
the principles that inform the policy concern the practice of medicine, the
physician-patient relationship and the duty to act in the patient's best
interests. This is a professional ethical framework, not a mere
re-statement of the criminal law.
Finally, criminal rules of evidence require proof beyond reasonable doubt
for conviction, so various factors, such as the absence of a key witness,
may preclude criminal prosecution for referral for genital cutting.
However, the standard of proof in disciplinary proceedings is proof on the
balance of probabilities, so that charge of professional misconduct for
referral may proceed even if criminal prosecution does not take place.
In that case, the criminal law on parties to offences would not be
applicable, though it could, as here, serve as a reference to illustrate the
underlying principles. Instead a conviction for professional misconduct for
referral would have to rely on the concept of morally significant
participation discussed above.
Refusing to participate
It is reasonable to hold that the kind of action involved in helping a
patient to access euthanasia amounts to participation in the sense intended by
various medical authorities in policies that forbid physician participation in
capital punishment, torture or female genital cutting. Refusing to participate, even indirectly, in conduct believed to involve
serious ethical violations or wrongdoing is not aberrant behaviour. On
the contrary: it is the response expected of physicians by professional
bodies and regulators in order to avoid physician complicity in such
procedures.
Notes
1. For example, the Association for the Right to Die
with Dignity is against forcing
an unwilling physician to lethally inject a patient because it is concerned
that an
unwilling physician would probably not do it well.
Consultations (Hereinafter "Consultations"), Wednesday, 25 September 2013 - Vol. 43 no. 38:
Quebec
Association for the Right to Die with Dignity (Hélène Bolduc, Dr. Marcel
Boisvert, Dr. Georges L'Espérance), T#107. Others, like
Dr. Yves Bolduc, believe that an attempt to force unwilling physicians or others to
lethally inject a patient would cause of counterproductive backlash.
Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38:
Quebec Association for the Right to Die with Dignity
(Hélène Bolduc, Dr. Marcel Boisvert, Dr. Georges L'Espérance), T#102
2.
Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38:
Quebec
Association for the Right to Die with Dignity (Hélène Bolduc, Dr. Marcel
Boisvert, Dr. Georges L'Espérance), T#107.
3. American Medical Association, Resources- Medical Ethics:
Opinion 2.06 - Capital Punishment.
(Accessed 2014-07-10)
4. Fernandez-Lynch, Holly, Conflicts of Conscience in Health
Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press,
2008, p. 229
5.
Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC"),
Section 21(a).
(Accessed
2014-07-17)
6. Often referred to as "aiding." CC,
Section 21(b).
(Accessed
2014-07-17)
7. The Code uses the word "abet." CC,
Section 21(c);
R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. (Accessed
2014-07-17)
8. CC,
Section 22
(Accessed
2014-07-17)
9. R v. Papalia (1979) 2 S.C.R. 256;
CC,
Section 465.
(Accessed 2014-07-17)
10. World Medical Association, "WMA Resolution to Reaffirm the WMA’s Prohibition of Physician
Participation in Capital Punishment." Adopted by the 63rd
General Assembly of the World Medical Association, Bangkok, Thailand,
October 2012. (Accessed 2014-07-17)
11. American Medical Association, Resources- Medical
Ethics:
Opinion 2.06 - Capital Punishment. (Accessed 2014-07-10)
12.
Alter, Jonathon, "Time to
Think About Torture." Newsweek, 5 November,
2001, p. 45.
13. Wikipedia,
"Maher Arar." (Accessed
2014-07-27)
14.
Commission of Inquiry into
the Actions of Canadian
Officials in Relation to
Maher Arar,
Report of the Events
Relating to Maher Arar:
Analysis and Recommendations.
(hereinafter, "Arar Inquiry:
Analysis and
Recommendations") p. 9.
Accessed 2008-09-08
15.
Arar Inquiry: Analysis and
Recommendations, p.
346. (Accessed 2008-09-08)
16.
Arar Inquiry: Analysis and
Recommendations, p.
199. (Accessed 2008-09-08)
17.
Editorial, "How complicit
are doctors in the abuse of
detainees?" The Lancet,
Vol 364, August 21, 2004, p.
725-729
18.
Miles, Steven H., "Abu
Ghraib: its legacy for
military medicine." The
Lancet, Vol 364, August
21, 2004, p. 725-729;
Lifton, Robert Jay, Doctors
and Torture. N Engl J Med
351;5
19. WMA Declaration of Tokyo -
Guidelines
for Physicians Concerning Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment in Relation to Detention and Imprisonment.
Adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975 and
editorially revised by the 170th WMA Council Session,
Divonne-les-Bains, France, May 2005 and the 173rd WMA Council
Session, Divonne-les-Bains, France, May 2006 (Accessed 2014-07-18)
20. American Medical Association Policy E.2.067:
Torture.
(Accessed 2014-07-27)
21. Canadian Medical Association Policy resolution
BD80-03-99 - Treatment of prisoners. Status: Approved, 1979-Dec-08. Last
Reviewed, 2004-Feb-28: Still relevant.
22. CC,
Section 268(3). (Accessed 2014-07-18)
23. College of Physicians and Surgeons of Ontario,
Policy Statement #2-11, Female Genital Cutting (Mutilation).
Reviewed and updated November, 2004, September 2011. (Accessed
2014-07-18)