Redefining the Practice of Medicine
Euthanasia in Quebec
An Act Respecting End-of-Life Care (June, 2014)
Sean Murphy*
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.
A principal contributor to this lack of awareness - if not actually
the source of it - is the Code of Ethics of the Collège des
médecins, because it requires that physicians who are unwilling to provide a service for reasons
of conscience help the patient obtain the service elsewhere. The President of
the Collège was pleased that law will
allow physicians to shift responsibility for finding someone willing to
kill a patient to a health system administrator, avoiding an anticipated problem
caused by the requirement for referral
in the Code of Ethics. However, the law does not displace the demand for referral in the Code, and
can be interpreted to support it.
The Collège des médecins Code of Ethics
demand for referral
conflicts with the generally accepted view of culpable
indirect participation. Despite this, it continues to be used as a paradigm by
other professions, notably pharmacy. It is thus not surprising
that the College of Pharmacists also anticipates difficulty over the
issue of referral. Like the Collège des
médecins, the College of Pharmacists would like to avoid these problems
by allowing an objecting pharmacist to shift responsibility for
obtaining lethal drugs to a health systems administrator.
Nurses cannot be delegated the task of killing a patient, it
is not unreasonable to believe that nurses may be asked to participate
in euthanasia in other ways. Thus, there remain concerns about
indirect but morally significant participation in killing. Their Code of Ethics imposes a duty to ensure
both continuity of care and "treatment," which is to include euthanasia. However, under ARELC, an objecting
nurse is required to ensure only continuity of care. This
should not be interpreted to require nurses to participate in
euthanasia, though they may be pressured to do so.
As a general rule, it fundamentally unjust and offensive to human
dignity to require people to support, facilitate or participate in what
they perceive to be wrongful acts; the more serious the wrongdoing, the
graver the injustice and offence. It was a serious error to include
this a requirement in code of ethics for Quebec physicians and
pharmacists. The error became intuitively obvious to the Collège des
médecins and College of Pharmacists when the subject shifted from
facilitating access to birth control to facilitating the killing of
patients.
A policy of
mandatory referral of the kind found in the Code of Ethics of the
Collège des médecins is not only erroneous, but dangerous. It
establishes the priniciple that people can be compelled to do what they
believe to be wrong - even gravely wrong - and punish them if they
refuse. It purports to entrench a 'duty to do what is wrong' in
medical practice, including a duty to kill or facilitate the killing of
patients. To hold that the state or a profession can compel someone to
commit or even to facilitate what he sees as murder is extraordinary.
Quebec's medical establishment can correct the error by removing the
mandatory referral provisions of their codes of ethics that
nullify freedom of conscience. This would prevent objecting physicians and
pharmacists from being cited for professional misconduct for refusing to facilitate euthanasia
or disciplined for refusing to facilitate other
procedures to which they object for reasons of conscience, including
contraception and abortion. This would almost
certainly antagonize consumers who have been conditioned to expect health
care workers to set aside moral convictions.
It remains to be seen whether the Quebec medical establishment will
maintain the erroneous provisions, preferring to force objecting health care
workers to become parties to homicide rather than risk occasionally
inconveniencing people, such as the young Ontario woman and her supporters
who were outraged because she had to drive around the block to obtain The
Pill.
During the legislative committee hearings into Bill 52, Dr. Yves Bolduc
noted that "conscientious objection. . . goes a long way."
We heard groups there, that do not at all agree with
[physician assisted dying] . . . to such an extent that even
the fact of
collaborating indirectly with others
goes against their
consciences.
"I'm not saying that this is what we meet in the system, most of the
time," he added, but he was clearly concerned about the potential for
conflict.1
What is much less clear is whether or not he or others understood that such
refusals are morally and ethically legitimate responses to indirect participation in
perceived wrongdoing. As noted in Part 6, 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.
A review of the transcripts of the hearings into Bill 52 discloses that
this point was not grasped by any of the legislators or supporters of the
bill. A principal contributor to this lack of awareness - if not actually
the source of it - is the Code of Ethics of the Collège des
médecins du Québec.
Dr. Charles Bernard, President and Director General of Quebec's Collège des médecins ,
acknowledged that, like society, members of the medical profession were not
unanimous in supporting euthanasia, "[s]o it is certain that there will be a
number of people who will not do this." Physicians, he said could
withdraw because of religious beliefs.2
Further, Dr. Bernard concisely stated and
appeared to agree with the reasoning of physicians who refuse to refer for or
facilitate morally contested procedures:
[I]f you have a conscientious objection and it is you
who must undertake to find someone who will do it, at this time, your
conscientious objection is [nullified]. It is as if you did it anyway. /
[Original French] Parce que, si on a une objection de conscience puis c'est
nous qui doive faire la démarche pour trouver la personne qui va le faire, à
ce moment-là, notre objection de conscience ne s'applique plus.
C'est comme si on le faisait quand même.3
This is a striking admission. Dr. Bernardin's explanation is entirely consistent with the generally accepted view
of culpable indirect participation discussed in Part
6. However, it is
not consistent with the Collège des médecins Code of Ethics. Quebec is the only province in which the
physician regulator demands
that objecting physicians assist patients to obtain morally contested
procedures.
The Collège's Code of Ethics
requires that physicians who are unwilling to provide a service for reasons
of conscience "offer to help the patient find another physician."4
The gloss provided by the Collège mentions abortion and contraception and
emphasizes an expectation of active assistance by the objecting physician to
locate, not just another physician, but the services themselves.5
The result is precisely what Dr. Bernard's found problematic;
freedom of conscience is nullified.
Strictly speaking, the Code itself requires an offer of help,
but does not specify what constitutes "help," nor does the gloss specify
what is considered satisfactory assistance. In the Project's experience,
physicians who wish to avoid becoming morally complicit in a procedure are
usually willing to provide a patient with general information, such as the
address of a registry of physicians maintained on the website of a
regulatory authority. It could be argued that this suffices for compliance
with the Code, and it may be that, until now, neither patients nor the Collège have consistently tried to push for more.
Be that as it may, the presentation of the officers of the Collège des médecins du Québec
on this point exposed both the problem with the Collège Code of Ethics
and their intuitive recognition of the problem. As noted above,
Dr. Bernard acknowledged that referral results in moral culpability.
Thus, he was pleased with the provision in the bill (retained in ARELC)6 that
requires a physician who refuses to provide euthanasia for reasons of
conscience to notify the executive director of an institution or local
authority. Since the
executive director becomes responsible for finding a willing physician, Dr.
Bernard felt that solved
the problem of complicity, at least for the objecting physician.
Concerning this arrangement, he said, "We like it a lot."7
Dr. Bernard and his Collège colleague, Dr. Michelle Marchand, were pleased with the
provision in the law because it sidestepped the problem they
would otherwise face as a result of the requirement for referral
in the Code of Ethics.
Dr. Marchand noted the requirement in the Code of Ethics,
but described the provision as "an obligation to transfer" (l'obligation
de transférer). An obligation to "transfer" does not
necessarily involve the physician in finding a physician willing to take the
patient; it can mean simply providing medical records to a physician who has
been found by someone else. This is not what the Code means,
and she seems to have meant referral rather than transfer, so her
terminology confuses the issue. However, she, too, was pleased with the idea of collective or
institutional rather than individual responsibility.
But it is conceivable that, when implementing a
practice like this early on, the transfer will be difficult. So I think it's
a good idea to make it the collective responsibility of physicians and
facilities to make this possible, so that the patient ultimately is not
deprived of a service that should be accessible.8
Her explanation actually underscores the signifcance of the earlier
discussion of culpable indirect participation, and the problem with the Collège des médecins Code of Ethics.
Dr. Marchand said she expected difficulty "early on" in requiring transfer
(i.e., referral, helping a patient to find a physician to provide a lethal
injection), and thought this could be overcome by relieving physicians of
individual responsibilty.
Why expect difficulty?
Because she knew that some physicians believe that euthanasia is gravely
wrong, and, for that reason, they would refuse to facilitate it even
indirectly by referral.
Why difficulty "early on"?
Because she believed that, as time goes on, more and more physicians will
accept euthanasia as a legitimate practice, and will have no objection to
referral if they are unwilling to do it themselves.
Relieving physicians of what individual responsibility?
The responsibility imposed by the Collège's Code of Ethics on an
objector to help the patient find a willing colleague.
Dr. Marchand's concern about encountering difficulty was shared by Dr.
Gaétan Barrette, then representing the Federation of Medical Specialists.
He emphasized that, in the case of conscientious objection, "someone in the
system" should be responsible for finding a replacement, because if it were
made the responsibility of the objecting physician "there will be too much
opposition."9
Dr. Yves Bolduc was of the same opinion:
When a doctor decides he does not practice medical assistance to
die and that at this time the patient should consult another doctor
or another team , I must confess that I am of the school that says
we should not ask doctors to find or even participate in
it because it will be too complex. And what will happen is that while people are arguing ,
the patient will not receive treatment.10
The difficulties anticipated by Collège representatives,
Dr. Barrette and Dr. Bolduc arise from the conflict between the
Collège des médecins Code of Ethics
and a fundamental ethical norm that all of them intuitively
recognized.
The Minister of Health understood why the Collège des médecins
liked Section 31 "a lot", but, unlike Dr. Bernard and Dr.
Marchand, she recognized that the concomitant obligation in
the Code of Ethics is not affected by ARELC:
. . .you can imagine
that doctors,
who had some
reservations about being
forced at all costs
to find another
doctor, are very relieved to see
that they are not
alone, though, in the
code of ethics, they
have the obligation, so
they are supported by the institution.
So the idea there,
is to find balance. (emphasis added)11
Recall that, in Part 7, we noted that
the protection of conscience provision in ARELC appeared to provide
objecting physicians with a much narrower exemption than other health care
workers.
Physicians may only refuse "to administer" euthanasia - a very
specific action - which seems to suggest that they are expected to
participate in other ways. And ARELC states that objectors must
"ensure that continuity of care is provided. . . in accordance with
their code of ethics." (emphasis added)
Thus, whether or not an objecting physician conforms to Section 31 of
ARELC by notifying an executive director of refusal to provide euthanasia,
the Collège des médecins Code of Ethics can be
cited to try to force them to facilitate MAD services by referral or other
means, and this may actually be supported by the restricted exemption
for physicians in Section 50, together with its reference to
physicians' Code of Ethics.
It is interesting to note that this is consistent with what the
Provincial Association of User Committees demanded during legislative
hearings into Bill 52:
We want to make sure
that professionals who have
responsibilities under
the law must
refer a user who wants to access terminal palliative sedation or
medical assistance to die to another
professional. It should ensure that, even
in private practice, and I know that you have
discussed,
a home care
professional is
required to redirect
user who wants these forms of care to another professional.12
The Quebec Association of Health Facilities and Social Services was even
more direct, quoting the Collège des médecins Code of Ethics
in support of its demand:
So, the code of
ethics of physicians, we know, that
states that it is still
the doctor, who
must provide the
patient with assistance in finding
another doctor. So we must, of course, not disempower this premise
and AQUESSS believes that it would be inappropriate for the legislature to
impose on the [executive director] full responsibility
to find a replacement when
a doctor refuses
his patient medical help to die. (emphasis added)13
The Association complained that on objecting physician who notified the
executive director that he was refusing to provide euthanasia could thereby
discharge his responsibility, which, they understood, "benefits the
physician who refuses to refer the matter to someone else." However,
they were insistent: "Do not
relieve the
doctor of responsibility in this process
with the client
and family."14
This seems to be what has happened. Section 31 provides objecting
physicians with an alternative to the demand in the Code of Ethics,
and it may prove acceptable in many situations. However, if push comes
to shove, Section 31 of
ARELC does not displace the demand for referral in the Code, and
ARELC Section 50 can be understood to support it.
Since the Collège des médecins Code of Ethics
conflicts significantly with the generally accepted view of culpable
indirect participation discussed in Part 6,
it is unfortunate that its mandatory referral provision was and continues to be used as a paradigm by
other professions. Predictably, the intuitive recognition of the
problem evident in the Collège presentation surfaced when the subject of
freedom of conscience was raised with pharmacists.
Representatives of the College of Pharmacists of Quebec told legislators
that (like physicians) objecting pharmacists are required to help the
patient find another pharmacist. Their Code of Ethics states:
Pharmacists
must, where their personal convictions may prevent them from recommending or
providing pharmaceutical services that may be appropriate, so inform their
patients and explain the possible consequences of not receiving the
services. Pharmacists must then offer to help the patients find another
pharmacist.15
This appears to have developed as
a result of conscientious objection to "emergency oral contraception."16
Véronique Hivon commented that this was "just like" the Collège des médecins Code of Ethics,
but added that this did not impose an obligation "for results."17
That is, the Code imposes an obligation to help the patient find
another pharmacist, not to ensure product delivery by another pharmacist.
It does not appear that the full significance of this distinction was
recognized by either representatives of College of Pharmacists of Quebec or
the legislators. The difference is important because a literal reading
of the Code indicates that the
obligation to help find another pharmacist can be discharged by referring
the patient to a telephone book or a list of pharmacies in the area.
The experience of the Project is that most objectors are willing to direct
the patient to this kind of publicly available information that is not
specific to the provision of the morally contested service. Since the
majority of pharmacists do not object to dispensing oral contraceptives,
telephone listings or a local list of pharmacies probably coincides more or
less exactly with a list of oral contraceptive dispensers, so that this kind
of general approach would likely result in the patient getting the drug.
That is not the case, however, with euthanasia drugs. Linda
Vaillant, speaking for the Pharmacists Association of Health Facilities of
Quebec, told the committee that Bill 52 caused discomfort for many members
of the association because "[p]eople have really made it clear they do not
want them to be seen as people who help others to die."18
While she was representing pharmacists working in health facilities, it
is not unreasonable to believe that unwillingness to being associated with
euthanasia exists among pharmacists outside institutional
walls. In this context, committee member Stéphanie Vallée once more
recognized the problem created by establishing a purported "right" to
euthanasia:
A
pharmacist, for example,
by conscientious objection
does not stock the
required drugs
. . . the only
pharmacist in a community
that, for some reason very,
very personal,
says I, I do not
intend to offer that service,
so I will not order
the medication, what do we do?
. . .
I understand that you
want to respect this freedom,
but at the same time,
we have a bill that
makes ... which gives
a right, access
to the entire territory
of certain services,
including medical assistance
to die. So how
can we
reconcile the
freedom of conscience in
that context and the right
as provided in the bill?19
Unfortunately, the position of the College of Pharmacists seems likely to
exacerbate this tension. It seems that, whatever the
Code actually says, the College
interprets it to mean that an objecting pharmacist must help to find a
pharmacist willing to dispense lethal medication for the purpose of killing
a patient (see the italicized section in the passage below).
Leaving aside the validity of the interpretation, the College anticipates more
serious problems with requests for
drugs for lethal injections or toxic milkshakes than it has encountered with
requests for oral contraceptives.20
On the human level now, indeed, we may end up with more
problematic situations. And the idea of having a system to
facilitate, I would say, the inventory of pharmacists who are
able to offer medical assistance to die, without placing the
pharmacist in a situation he has to run after other pharmacists,
we think it may be welcome in a case like this. But it is clear
that we do not want to remove this obligation, the obligation to
refer to another pharmacist, but if it occurred it would be
difficult for him to do, well, a helping hand, just like what is
done for doctors, could be welcome, especially considering that
you want a better quality of care for these patients. (emphasis
added)21
The "helping hand" referred to here is Section 31 of ARELC, which allows
an objecting physician to turn over to health system administrator the
responsibility for finding someone willing to kill a patient. The
Pharmacists Association of Health Facilities of Quebec also supported the
idea. "We should not force [objecting pharmacists] to look for a
colleague," said François Paradis. "I think it further complicates
the process."22
As noted in Part 5, it was to avoid such
problems that
the Quebec College of Pharmacists suggested that regional health
authorities canvas pharmacists in advance to identify those willing to
provide euthanasia drugs.23
The Code of Ethics for Quebec nurses has no provison that
recognizes freedom of conscience.24
Since, under ARELC, only physicians may actually kill a patient, the absence
of such recognition may not seem important with respect to MAD services.
However, as the Quebec Order of Nurses pointed out, nurses are continuously
and intimately involved with the care and treatment of patients.25
While they cannot be delegated the task of killing a patient, it is not
unreasonable to believe that nurses may be asked to participate in
euthanasia in other ways: by, for example, preparing the lethal injection,
or monitoring vital signs to ensure that death occurs following the
administration of lethal drugs. Thus, as discussed in
Part 6, there remain concerns about
indirect but morally significant participation in killing.
Two provisions of the Code seem relevant to the case of a nurse who
refuses to participate in certain activities for reasons of conscience.
The first states, "A
nurse who is providing care and treatment to a client may not abandon him or
her without a serious reason."26
Whether or not refusing to participate in euthanasia amounts to "patient
abandonment" is disputed; euthanasia and assisted suicide advocates
sometimes use such rhetoric in order to compel participation in the
procedures.27
The second provision states that nurses must "take
reasonable measures to ensure the continuity of care and treatment."28
Nurse representatives offered the following explanation:
. . . if a nurse
is caring for a client,
but has a
conscientious objection in relation to
a specific situation,
as provided in the
bill at this
time she
could [exercise] conscientious
objection, but she should
ensure that . . .
there is a continuity
of care so that you don't end up with a
customer who does not receive care. . .29
In fact, this provision in their Code of Ethics imposes a duty to ensure
not just continuity of care, but also continuity of "treatment," which, under
ARELC's terms, would include killing a patient by administering lethal drugs.
Here, the distinction the nurses' Code makes between care and
treatment is important, because, under Section 50 of ARELC, an objecting
nurse is required to ensure only continuity of care. Elsewhere,
nurse representatives explained that nurses did not consider euthanasia to be
"care," but "a procedure that terminates life."30
It thus seems that ensuring continuity of care should not be interpreted to
require nurses to participate in euthanasia. That does not mean that
they will not be pressured to do so under the rubric of "continuity of
care."
Both the Collège des médecins and College of
Pharmacists of Quebec anticipate problems arising from the requirements in
their respective Codes of Ethics, apparently developed in response
to conscientious objection to contraception and abortion, that physicians
and pharmacists who refuse to provide services or procedures they believe to
be wrong are obliged to help patients find someone who will provide them. Of course, if it is legitimate to force
objecting physicians to help patients
obtain morally contested services or procedures like abortion, then it is
legitimate to force them to help patients obtain euthanasia and assisted
suicide.
Nonetheless, one detects
discomfort about the problem created by their codes, and relief (in
the case of the Collège des médecins) that ARELC may allow them to avoid
it. The intuitive awareness of the Colleges of the problems likely to arise
in compelling objecting professionals to facilitate what they believe to be
wrong warrants attention. So, too, is their discomfort in contemplating the application of such a policy, and relief at
the prospect of avoiding it. Here we can apply a suggestion by Professor Margaret Somerville that
"moral intuition" and "examined emotions" may provide valuable ethical
insights by asking some questions.31
Whence the awareness of the problem? Why the discomfort? Why the
relief?
The most probable explanation is that, as a general rule,32 it is fundamentally unjust and
offensive to human dignity to require people to support, facilitate or
participate in what they perceive to be wrongful acts; the more serious the
wrongdoing, the graver the injustice and offence. It is thus a serious
error to include such a requirement in a code of ethics. College
representatives were aware of this because, in the words of Project advisor Jay Budziszewski,
this is one of those things we
can't not know, though we may not know them "with unfailing perfect clarity"
or have worked out "their remotest applications."33
An absence of clarity or sufficient reflection may explain why this error
was not apparent to College representatives with respect to contraception
and abortion, but it became intuitively obvious to them when the subject
shifted from facilitating access to birth control to facilitating the
killing of patients. This explains why they were uncomfortable and
even doubtful about the wisdom of forcing objecting physicians and
pharmacists to find colleagues willing to kill patients, and why they were
relieved by the prospect that they might be able to sidestep the problem.
When one works out the remote applications of the policy of
mandatory referral for contraception and abortion adopted by Quebec
regulatory authorities, it becomes clear that it is not only erroneous, but
dangerous. It establishes the principle that a learned or
privileged class, a profession or state institutions can legitimately compel
people to do what they believe to be wrong - even gravely wrong - and punish
them if they refuse. It purports to entrench a 'duty to do what
is wrong' in medical practice, which, through ARELC, is to include a duty to
kill or facilitate the killing of patients. One of the leading
proponents of this view is Professor Jocelyn Downie of Dalhousie University.
In 2006 Professor Downie was one of two law professors who wrote a guest
editorial in the Canadian Medical Association Journal claiming that
physicians who refuse to provide abortions for reasons of conscience had an
ethical and legal obligation to refer patients to someone who would. This
elicited a flood of protest, and the CMA reaffirmed its position that
objecting physicians were not obliged to refer for the procedure, repeating
the affirmation in 2008. The negative response to the editorial from the
medical profession convinced Professor Downie that policy reform by the CMA
was unlikely, so she turned her attention to provincial regulatory
authorities to persuade them to force the medical profession to conform to
her views.34
Professor Downie was also a member of the "expert panel" of the Royal
Society of Canada that, five years later, recommended legalization of
assisted suicide and euthanasia. The panel conceded that health care workers
may object to providing euthanasia or assisted suicide, and that compelling
them to do so might constitute a limitation of their "liberty or freedom of
conscience and religion." For these reasons, Professor Downie and her expert
colleagues recommended that health care professionals who object to
euthanasia and assisted suicide should be compelled to refer patients to
someone who would provide the procedures.35
Their explanation:
Today's procedural solution to this problem is, in
Canada as well as many other jurisdictions, that health care professionals
may provide certain reproductive health services that some religious health
care professionals object to on conscientious grounds, however, they do not
have to provide those services, in case the provision of those services
would violate their conscience. Such objecting health care professionals are
required to transfer an assistance seeking person on to other health care
professionals who will provide the required services in a timely manner. The
underlying rationale for this procedural solution lies in this kind of
reasoning: If only health care professionals are permitted to provide
assistance but they are not obligated to do so, then their autonomy is not
limited but the autonomy of those seeking assistance could potentially be
unfairly limited. Hence the requirement on conscientious objectors to refer
assistance seekers to colleagues who are prepared to oblige them.36
Two points warrant attention here.
The first is that the panel argued that, because it is agreed that we can
compel objecting health care professionals to refer for abortion, we are
justified in forcing them to refer for euthanasia.
The second and more remarkable point is that, outside of Quebec, there
is, in fact, no agreement that objecting health care professionals should be
compelled to refer for abortions. Given the repudiation of her views by the
CMA, Professor Downie must have been aware of that. This inconvenient fact
was left out, apparently to make it appear that compulsory referral for
euthanasia and assisted suicide is an entirely reasonable and uncontested
"procedural solution" to the "problem" caused by people who refuse to do
what they believe to be wrong. Presumably this accounts for the absence of
any cited reference to back up their assertion.
We have seen that, as a matter of Canadian constitutional law, ARELC does not affect
Canadian criminal law. Hence, no matter what ARELC purports to do,
killing patients under the conditions specified by the act would constitute
first degree murder (murder that is "planned and deliberate"37) and anyone
counselling, aiding, abetting the killing (by referral, for example) would
be considered a party to the offence.38
Now, it is not inconceivable (and this is the
hope of the Quebec government) that a court might rule that killing a
patient in accordance with ARELC is not murder under the criminal law. An
undetermined number of physicians and health care workers would then begin
or continue with killing patients under the terms of the law, in the belief
that what they were doing was not only legal, but morally acceptable. In a
sense, this would not be remarkable, because that sort of thing has happened
in the past, and it is happening now, in Belgium and the Netherlands, for
example.
Nonetheless, there is no doubt that most of those opposed to the bill in
principle would, despite the ruling of the court, continue to consider
euthanasia to be (morally) planned and deliberate murder. Having this view,
it would come as no surprise if they were to refuse to kill patients or
refuse to encourage or facilitate the killing of patients by counselling,
referral or other means. And this would not be remarkable, because this has
also happened in the past.
It is at this point that one realizes the unique character of the 'duty
to do what is wrong' movement, exemplified by Professor Downie and enshrined
in the Collège des médecins du Québec Code of Ethics. Recall that, for
Professor Downie and the other Royal Society panel of experts (and those who
share their views) it is not sufficient to simply encourage and allow
willing health care professionals to kill patients. They demand that health
care professionals be compelled to participate in and facilitate the killing
of patients - even if they believe it to be wrong, even if they believe it
to be murder - and that they should be punished if they refuse to do so.
This is quite extraordinary, even if there are precedents for it.
Killing is not surprising; even murder is not surprising. It has even
been said that there is something uniquely human about murder. But to hold
that the state or a profession can, in justice, compel an unwilling soul to
commit or even to facilitate what he sees as murder, and justly punish or
penalize him for refusing to do so - to make that claim ought to be beyond
the pale. If the state or civil society or professional organizations
can legitimately require people to commit or aid in the commission of
murder, what can they not require?
This is the ultimate problem that comes of establishing a 'duty to do
what is wrong' in medical practice. It typically begins, as it began
in Quebec, by forcing objecting physicians or pharmacists to help patients
obtain contraceptives or abortion. These services are so popular that
many people are willing to nullify freedom of conscience among health care
workers so that they can have access to them on demand.
But, as illustrated by the response of the Collège des médecins and
Quebec College of Pharmacists to ARELC, forcing physicians and pharmacists
to facilitate the provision of contraception and abortion is a dress
rehearsal for forcing them to facilitate euthanasia and assisted suicide,
because both policies are supported by the same erroneous principle: that
some authority can impose a duty to do what one believes to be wrong, or
that the acceptance of such a duty can be made a condition membership in a
profession.
Quebec's medical establishment can correct the error by removing the
mandatory referral provisions of their codes of ethics that
nullify freedom of conscience. This would prevent objecting physicians and
pharmacists from being cited for professional misconduct for refusing to facilitate euthanasia. However, it
would also prevent them from being disciplined for refusing to facilitate other
procedures to which they object for reasons of conscience, including
contraception and abortion. Unfortunately, correcting the error would almost
certainly antagonize consumers who have been conditioned to expect health
care workers to set aside moral convictions and provide or at least
facilitate provision of contraception and abortion.
It remains to be seen whether or not the Quebec medical establishment
will maintain the erroneous provisions, preferring to force objecting health care workers to become parties to homicide
rather than
risk occasionally inconveniencing people, such as the young Ontario woman
and her supporters who were outraged because she had to drive around the
block to obtain The Pill.39
Notes
1.
Committee on Health and Social Services of the Quebec National Assembly, Consultations & hearings on Quebec Bill 52
(Hereinafter "Consultations"), Thursday, 26 September 2013 -
Vol. 43 no. 39:
Interprofessional Health Federation
of Quebec (Régine Laurent, Julie Martin, Michàle
Boisclair, Brigitte Doyon), T#055
2. Consultations,
Tuesday, 17 September 2013 - Vol. 43 no. 34: Collège des médecins du Québec
(Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#141(a)
3.
Consultations: Tuesday 17 September 2013 - Vol. 43 no. 34: Collège des médecins du Québec,
(Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#154
4. Collège des médecins du Québec,
Code of Ethics of Physicians, para. 24 (Accessed 2013-06-23)
5. "For example, a physician who is opposed to
abortion or contraception is free to limit these interventions in a manner
that takes into account his or her religious or moral convictions. However,
the physician must inform patients of such when they consult for these kinds
of professional services and assist them in finding the services requested."
Collège des médecins du Québec,
Legal, Ethical and Organizational Aspects of Medical Practice in Québec.
ALDO-Québec, 2010 Edition, p. 156. (Accessed 2013-06-23)
6.
ARELC, Section 31.
7. Consultations,
Tuesday, 17 September 2013 - Vol. 43 no. 34:
Collège des médecins du Québec (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle
Marchand), T#154
8. Consultations,
Tuesday, 17 September 2013 - Vol. 43 no. 34:
Collège des médecins du Québec (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle
Marchand), T#156
9. Consultations,
Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of Quebec Medical Specialists
(Dr. Gaétan Barrette, Dr. Diane Francoeur, Nicole Pelletier), T#076
10. Consultations, Wednesday 18 September 2013 - Vol. 43 no. 35: Quebec Association of Health Facilities and Social Services
(Michel
Gervais, Diane Lavallée), T#087
11. Consultations, Wednesday 18 September 2013 - Vol. 43 no. 35: Quebec Association of Health Facilities and Social Services
(Michel
Gervais, Diane Lavallée), T#032
12. Consultations,
Wednesday, 25 September 2013 - Vol. 43 no. 38:
Provincial Association of User Committees (Claude Ménard, Pierre Blain), T#012
13. Consultations, Wednesday 18 September 2013 - Vol. 43 no. 35: Quebec Association of Health Facilities and Social Services
(Michel
Gervais, Diane Lavallée), T#017
14. Consultations, Wednesday 18 September 2013 - Vol. 43 no. 35: Quebec Association of Health Facilities and Social Services
(Michel
Gervais, Diane Lavallée), T#038
15.
Code of Ethics of Pharmacists (Quebec), Section 26
(Accessed 2014-08-12)
16. Consultations, Tuesday 17 September 2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon
Lambert),T#047
17. Consultations, Tuesday 17 September 2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon
Lambert),T#074
18. Consultations, Tuesday, 17
September 2013 - Vol. 43 no. 34:
Pharmacists Association of Health Facilities of Quebec (François
Paradis, Linda Vaillant)T#031
19. Consultations, Tuesday 17 September 2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert),T#053
20. Consultations,
Tuesday 17 September 2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert),T#080
21.
Consultations, Tuesday 17 September 2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon
Lambert),T#081
22.
Consultations,
Tuesday, 17 September 2013 - Vol. 43 no. 34:
Pharmacists Association of Health Facilities of Quebec (François
Paradis, Linda Vaillant)T#020
23. Consultations, Tuesday 17 September
2013 - Vol. 43 no. 34:
College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert),T#063
24.
Code of Ethics of Nurses (Quebec) Accessed 2014-07-23
25. Consultations, Tuesday, 8
October 2013 - Vol. 43 no. 44:
Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand,
Sylvie Truchon), T#021
26.
Code of Ethics of Nurses (Quebec), Section 43 (Accessed
2014-07-23)
27. For example, the testimony of Prof. Margaret
Battin referred to at Paragraph 239 in Carter v. Canada (Attorney
General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June,
2012. Vancouver, British Columbia.
28.
Code of Ethics of Nurses (Quebec), Section 44(3) (Accessed
2014-07-23)
29.
Consultations,
Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses
(Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon), T#064
30.
Consultations, Tuesday, 8
October 2013 - Vol. 43 no. 44:
Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne
Durand, Sylvie Truchon), T#099
31. "Although feelings can sometimes be misleading in terms
of ascertaining what is and is not acceptable conduct (as indeed can
rationality, which we have sometimes found to our sorrow), we ignore
feelings at our peril. We need to take into account 'examined
emotions'. . ." Somerville, Margaret, Death Talk: The Case
against Euthanasia and Physician-Assisted Suicide. McGill-Queens
University Press, 2001, p. 75-76.
32. "As a general rule," since exceptions might be
imagined, as in the case of a delusional driver who refuses to stop for red
lights. However, the general rule states the default position, and a
serious burden of proof lies on those who want to set it aside in particular
cases. Murphy S, Genuis SJ, "Freedom
of Conscience in Health Care: Distinctions and Limits." Journal of
Bioethical Inquiry, October 2013, Vol. 10 No. 3, p. 347-354
33. "However rude it may be these days to say so, there
are some moral truths that we all really know - truths which a normal human
being is unable not to know. They are a universal
possession, the emblem of a rational mind, an heirloom of the family of man.
That doesn't mean that we know them with unfailing perfect clarity, or that
we have reasoned out their remotest implications; we don't and we haven't.
Nor does it mean that we never pretend not to know them even though we do,
or that we never lose our nerve when told they aren't true; we do, and we
do. It doesn't even mean that we are born knowing them, that we never
get mixed up about them, or that se assent to them just a readily whether
they are taught to us or not. That can't even be said of 'two plus two
is four.'" Budziszewski J., What We Can't Not Know: A Guide. Dallas: Spence Publishing, 2003,
p. 19.
34. "(We decided to proceed by way of these provincial
regulatory bodies rather than the CMA, in part, because of the negative
reaction of the CMA to the Rodgers/Downie editorial, which made policy
reform by the CMA seem unlikely.)" McLeod C, Downie J. "Let Conscience Be
Their Guide? Conscientious Refusals in Health Care." Bioethics ISSN 0269-9702
(print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014
pp ii–iv
35. Schuklenk U, van Delden J.J.M, Downie J, McLean S,
Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 101 (Accessed 2014-02-23)
36. Schuklenk U, van Delden J.J.M, Downie J,
McLean S, Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 62 (Accessed 2014-02-23)
37. Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC")
Section 231(2). (Accessed 2014-02-24)
38. CC,
Section 745(a); CC,
Section 21(b); CC,
Section 21(c); CC,
Section 22 (Accessed 2014-02-24)
39. Murphy, S.
"NO MORE CHRISTIAN DOCTORS": Crusade against NFP only physicians.
Protection of Conscience Project