Questions and Answers
Re: Joint intervention in Carter v. Canada
Supreme Court of Canada,
15 October, 2014
Sean Murphy*
Introduction:
In June, 2012, a British Columbia Supreme Court Justice struck
down Canada's absolute ban on assisted suicide as well as the
rule that one cannot legally consent to be murdered. The
decision pertained only
to cases of physician-assisted suicide or homicide. The ruling was overturned in the Court of Appeal of
British Columbia in a 2/1 decision.
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 voices concern that legalization of physician assisted
suicide and euthanasia would likely adversely affect physicians and
health care wor 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.
Questions
1. Why do you use the term "killing" instead of the
term chosen by the Canadian Medical Association (medical aid in dying)? [Answer]
2. Why do you make the distinctions between justification,
authorization and an obligation to kill? [Answer]
3. Why do you emphasize the nature of an obligation to kill? [Answer]
4. Why do you introduce the inflammatory comparison between
physicians who provide euthanasia or assisted suicide and public
executioners? [Answer]
5.
Has someone actually suggested that objecting physicians should have to
provide or facilitate euthanasia and assisted
suicide? [Answer]
6. How is an obligation to provide or at least facilitate
euthanasia and assisted suicide implicit in the appellants claims? [Answer]
7. But the appellants'
factum does not say that there is
a right to euthanasia or assisted suicide from
any physician, but only
from "a physician who is satisfied it is appropriate treatment in the
circumstances." So an objecting physician
would not be made to kill patients or help them commit suicide.
[Answer]
8. What evidence did the appellants introduce at trial that
suggests physicians unwilling to kill patients should be obliged to refer
them to someone who will? [Answer]
9. If a physician refuses to provide treatment that a patient wants,
and won't help the patient get it elsewhere,
isn't that abandonment? [Answer]
10. What is the problem with requiring a physician who refuses to
kill a patient or assist the patient with suicide to refer the patient to
someone who will? That is what the Royal Society experts and the
Quebec National Assembly Select Committee recommended. [Answer]
11. Is there any evidence that physicians who, for reasons of
conscience, refuse to provide or refer for euthanasia
or assisted suicide will be discriminated against
or disadvantaged? [Answer]
12. Why do you say that the autonomy of the physician should be
given priority over the autonomy of the patient? [Answer]
13. If dependency and interdependency are more
fundamental than autonomy, does it not follow that the dependency of patients
on physicians justifies a requirement that physicians provide or facilitate
assisted suicide or euthanasia? [Answer]
Answers
1. Why do you use the term "killing" instead of the
term chosen by the Canadian Medical Association (medical aid in dying)?
- "The term killing does not necessarily entail a wrongful act or a
crime."1
- The CMA term includes both euthanasia and physician assisted
suicide, and both euthanasia and physician assisted suicide mean the
killing of a patient.2
- That "medical aid in dying" means killing is illustrated in
transcripts of testimony concerning the Quebec euthanasia law. The statute uses the term
'medical aid in
dying,' but Mme. Véronique Hivon, who introduced the bill, acknowledged that
"medical aid in dying" qualifies as homicide,
even though she denied that it amounts to euthanasia.3
- Similarly, the Collège des médecins du Québec agreed that 'medical aid
in dying' involves "an act of intentionally causing the death of a
person."4
- Lawyer Stéphanie Vallée, now Quebec Minister of Justice, noted
that 'medical aid in dying' "is really aimed at . . . death."5
- Gloria Jeliu, representing the Observatory for Aging and Society, which
did not take a position for or against euthanasia, cautioned that those
who want "medical help to die" must understand "it is a lethal injection
and is extremely fast. . .".6
- Yves Bolduc, a
physician and former Quebec Minister of Health, was disturbed by
frequent references to killing during committee hearings, saying, "We
are not in medicine to kill."7
Nonetheless, he described 'medical aid in dying' as administering "a
big dose of morphine or barbiturate, or curare to kill the person in
the space of five minutes."8
- From the perspective of those who object to euthanasia and assisted
suicide for reasons of conscience, the term "killing" keeps the
moral/ethical issue that is of concern to them front and centre.
This is especially important because terms like 'medical aid in dying'
tend to obscure the issue and encourage the pretence that a law
permitting the procedure is morally neutral.
2. Why do you make the distinctions between justification, authorization and
an obligation to kill?
- The distinctions are those made by the law. The law has always
acknowledged that killing someone is a grave and exceptional matter, and
the distinctions illustrate the care taken in establishing the
conditions for making an exception to the general rule against killing.
3. Why do you emphasize the
nature of an obligation to kill?
- It is not clear that the nature of that obligation is sufficiently
appreciated by those who propose that physicians or others should, in
defined circumstances, have an obligation to kill patients or assist in
killing them.
- Many of those who object to assisted suicide and euthanasia for
reasons of conscience believe that an obligation to kill is incompatible
with the ethical practice of medicine.
4. Why do you introduce the
inflammatory comparison between physicians who provide euthanasia or
assisted suicide and public executioners?
- The comparison is not between physicians who provide euthanasia and
executioners, but between the legal obligations of those required to
participate in such
practices.
5. Has someone actually suggested that objecting
physicians should have to provide or facilitate euthanasia and assisted
suicide?
- Yes.
- 2003: Two universities
in Belgium joined the Flemish Association and General to assert that physicians unwilling to provide euthanasis shou2003: Two universities
in Belgium joined the Flemish Association and General to assert that physicians unwilling to provide
euthanasia should help
patients find someone willing to provide the service.9
- 2011: A panel of the Royal Society of Canada
recommended legalization of assisted suicide/euthanasia,
and that physicians who refuse to kill patients
themselves or assist in suicide should be forced to help patients find
someone who will.10
- 2012: A legislative committee in the province
of Quebec recommended legalization of euthanasia, with a
requirement that physicians who refuse to kill patients
themselves or assist in suicide should be forced to help
patients find someone who will.11
- 2013: A group of academics, including prominent euthanasia
activists, supported by grants from the federal
government, have proposed a Model Conscientious Objection Policy for Canadian physicians.
Should euthanasia or assisted suicide be permitted, their policy would
require physicians unwilling to kill patients themselves to "make a referral
to another health care provider who is willing and able to accept the
patient and provide the service."12
Moreover, should the delay involved jeopardize the patient's
"well-being," the model insists that physicians personally provide "legally
permissible and publicly funded" services (i.e., kill the patient or assist
in suicide), "even in circumstances where the provision of health services
conflicts with physicians' deeply held and considered moral or religious
beliefs."13
6. How is an obligation to provide or at least facilitate
euthanasia and assisted suicide implicit in the appellants claims?
- A claim of an authentic 'right' to physician assisted suicide euthanasia would
imply an obligation on the part of some physician to kill a patient or
help the patient kill himself.
- In their notice of claim, the plaintiffs assert a "legal right
to die
peacefully, at the time of her choosing," refer to a purported
"constitutional right to physician-assisted dying," and claim that the
law results "in a deprivation of the s. 7 rights of individuals to
life, liberty and security of the person," depriving them of "the
right and ability to choose to die using physician-assisted dying services."14
- In their factum on appeal to the Supreme Court of Canada, they
assert the current laws "deny the suffering their rights of
life, liberty and security of the person," refer to "the right
to bring an end to suffering at the point it becomes intolerable,"
assert that current laws "violate . . . constitutional rights
to life, liberty, security of the person and equality," and claim tha
patients have a "right to seek to have PAD provided to them by
a physician who is satisfied it is appropriate treatment in the
circumstances." 15
7. But the appellants'
factum does not say that there is
a right to euthanasia or assisted suicide from
any physician, but only
from "a physician who is satisfied it is appropriate treatment in the
circumstances." So an objecting physician
would not be made to kill patients or help them commit suicide.
- This is not unusual. Most euthanasia/assisted suicide supporters do not insist
that objecting physicians personally kill patients or assist in suicide.16
- Instead, they demand that objectors facilitate or participate
indirectly in euthanasia or assisted
suicide by referral or other means.17
- Professor Jocelyn Downie advocates compulsory referral for all
morally contested procedures, including assisted suicide and euthanasia.18
She instructed the appellant's expert witnesses
at trial.19
- The appellants' factum and evidence they introduced at trial
supports the view that a physician unwilling to kill a patient or assist
in suicide should be forced to direct the patient to someone who will.
8. What evidence did the
appellants introduce at trial that suggests physicians unwilling to kill
patients should be obliged to do so, or at least to refer them to someone who will?
- The appellant introduced a report of a Royal Society of Canada
stating that objecting physicians should be forced to refer patients to
colleagues willing to provide assisted suicide or euthanasia.20
- Their witness, Professor Margaret Battin, implied that a
physician's refusal to provide assisted suicide or euthanasia would
amount to unethical abandonment of patients.21
9. But if a physician refuses to provide
treatment that a patient wants, and won't help the patient get it elsewhere,
isn't that abandonment?
- Not in cases in which the physician refuses for medical, moral or
ethical reasons, all of which are usually involved in such a decision.
- In such cases, the patient seeks A, which the physician finds
inadvisable or unacceptable, while the physician offers B, which the
patient finds unacceptable.
- The physician is not abandoning the patient, but offering advice or
treatment the patient does not want. For example:
- Patient seeks euthanasia
- Physician declines, offering palliative care, psychological
and emotional care, etc.
- Patient with gall stones seeks surgical removal of gall bladder
- Physician declines, but offers advice on symptom management
- In both cases, the patient is free to find another physician, and a
College of Physicians can help him do so.
- To characterize these situations as "abandonment" would be like
accusing a lawyer of abandonment if he withdraws from a case because the
client will not accept his advice.
10. What is the problem with requiring a physician who refuses to
kill a patient or assist the patient with suicide to refer the patient to
someone who will? That is what the Royal Society experts and the
Quebec National Assembly Select Committee recommended.
- The question was answered by the President of the Collège des
médecins du Québec:
- [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.22
- This ethical or moral concept is reflected in law. Judges and
lawyers know that one can be convicted of a criminal offence not just by
committing the crime itself, but by helping someone to commit it.
11. Is there any evidence that physicians who,
for reasons of conscience, refuse to provide or refer for euthanasia
or assisted suicide will be discriminated against
or disadvantaged?
- Yes.
- There are continuing efforts to force objecting
physicians to prescribe and refer for contraception and abortion,
obvious animosity displayed toward those who refuse to do so, and public
denigration of their motives and competence.23
- Nurses and others have been dismissed or otherwise
disadvanataged or discriminated against for refusing to assist with
abortion.24
- At least one
major maternity hospital in Canada refuses to hire qualified
maternity nurses who are unwilling to assist in
abortions for reasons of conscience, including abortions after 22
weeks gestation.25
- Regulatory authorities are being urged to suppress freedom of
conscience among physicians, and objecting physicians threatened
with harassment and prosecution by human rights tribunals.26
- Arguments used to support these attacks27 are also advanced to force unwilling
physicians to provide or
facilitiate euthanasia and assisted suicide.28
12.
Why do you say that the autonomy of the physician should be given priority
over the autonomy of the patient?
- We do not say that the autonomy of the physician should be
given priorty.
- We do say that the claims of autonomy by patients and
physicians do not help to resolve a conflict that arises when, for
reasons of conscience, a physician refuses to kill a patient or assist
in suicide.
13. If dependency and interdependency are more
fundamental than autonomy, does it not follow that the dependency of patients
on physicians justifies a requirement that physicians provide or facilitate
assisted suicide or euthanasia?
- If dependency/interdependency is recognized as a primary ethical
principle, one need not conclude that one must provide assisted suicide
or euthanasia.
- For example, Judaism, Christianity, and Islam accept the
centrality of dependency and interdependency, but do not conclude from
this that assisted suicide or euthanasia are morally acceptable.
Notes:
1.
"The term killing does not necessarily entail a
wrongful act or a crime, and the rule 'Do not kill' is not an absolute rule.
Standard justifications of killing, such as killing in self-defense, killing
to rescue a person endangered by another persons' wrongful acts, and killing
by misadventure (accidental, non-negligent killing while engaged in a lawful
act) prevent us from prejudging an action as wrong merely because it is
killing." Beauchamp TL, Childress JF, Principles of Biomedical Ethics
(7th ed.) New York: Oxford University Press, 2013, p. 176
2.
In the Supreme Court of Canada (on appeal from the Court of
Appeal of British Columbia) between Lee Carter, Hollis Johnson, Dr.
William Schoichet, the British Columbia Civil Liberties Association and
Gloria Taylor, Appellants (Respondents/Cross-Appellants) and Attorney
General of Canada, Respondent (Appellant/Cross-Respondent) and Attorney
General of British Columbia, Respondent (Appellant) and Attorney General
of Ontario, Attorney General of British Columbia and Attorney General of
Quebec, Interveners.(Hereinafter "In the SCC on appeal from the BCCA"),
Factum of the
Intervener, The Canadian Medical Association, para. 1-3, 5, 16-17.
3.
Consultations & hearings on Quebec Bill 52
(hereinafter "Consultations"), Wednesday, 25 September 2013 -
Vol. 43 no. 38:
Living with Dignity (Nicolas Steenhout, Dr. Marc
Beauchamp, Michel Racicot), T#039
4. Consultations, Tuesday, 17 September
2013 - Vol. 43 no. 34: Collège des médecins (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle
Marchand), T#013
5. Consultations, Thursday 19
September 2013 - Vol. 43 no. 36:Quebec Bar (Johanne Brodeur, Marc Sauvé, Michel Doyon), T#060
6. Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40:
Observatory for Aging and Society (André Ledoux, Gloria Jeliu, Denise
Destrempes, Claude Tessier), T#117
7. Consultations, Wednesday, 9 October
2013 - Vol. 43 N° 45:
Professor Margaret Somerville, T#059
8. Consultations, Tuesday, 8 October 2013
- Vol. 43 No. 44:
Institute for Care Planning (Danielle Chalifoux, Denise Boulet, Louise
Boyd), T#113
9. Belgian Association of General
Practitioners, Academic Centre for General Practice at
the Catholic University of Leuven, Department of General
Practice at the University of Ghent,
Policy Statement on End of Life Decisions and Euthanasia (Standpunt over
medische beslissingen rond het levenseinde en euthanasie) 4
December, 2003, Proposition 6;
10. 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, 101
(Accessed 2014-02-23)
11.
National Assembly of Quebec,
Select Committee Dying with Dignity Report (March, 2012)
Recommendation 13. (Accessed 2014-10-08)
12. Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013,
para. 5.3
13. Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013, para.
5.4 (https://www.consciencelaws.org/drafts/2013-downie-mcLeod-shaw.pdf)
14. In the BCSC,
Amended Notice of
Civil Claim, Part 1, para. 51, 55, 64(c); Part 3, para. 9-11,
18
15. In the SCC on appeal from the BCCA,
Factum of the Appellants (13 May, 2014) para. 4, 123, 162-164
(Accessed 2014-08-18)
16. Speaking for the Quebec Association for
the Right to Die with Dignity Association, Hélène Bolduc
told a Quebec legislative committee that the Association respected "the
freedom of the professional" and never had any intention of forcing
physicians to provide euthanasia, as "there is not a doctor who would do
it well if, in addition, it was not his inclination to do so, and it is
not to anyone's advantage to give this impression." Consultations &
hearings on Quebec Bill 52, 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
17. Belgian Association of General
Practitioners, Academic Centre for General Practice at the Catholic
University of Leuven, Department of General Practice at the University
of Ghent,
Policy Statement on End of Life Decisions and Euthanasia (Standpunt over
medische beslissingen rond het levenseinde en euthanasie) 4
December, 2003, Proposition 6;
Royal Dutch Medical Society (KNMG) Position Paper,
The Role of the Physician in the Voluntary Termination of Life
(23 June, 2011), p. 40.
18.
Rodgers S. Downie J.
"Abortion: ensuring access." CMAJ July 4, 2006 vol. 175 no.
1 (Accessed 2014-02-14);
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, 101; Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013,
para. 5.3
19.
Carter v. Canada, para. 124
20. 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, 69, 101
21. "[N]on-abandonment, is more
precisely a norm of practice for physicians, and follows from
the two philosophical principles. Physicians are under an
ethical obligation to try to respond to autonomous requests from
their patients, especially when those requests revolve around
extremes of suffering in those who are otherwise dying. . . The
nature of the patient’s suffering and why it is intolerable to
the patient must also be understood by the physician, who then
is obliged to try to respond as a matter of mercy and in
fulfilment of his or her commitment not to abandon the dying
patient."
Carter v. Canada, para. 239-240.
22. Consultations: Tuesday 17
September 2013 - Vol. 43 no. 34:
Collèe des médecins du Québec, (Dr. Charles Bernard, Dr. Yves
Robert, Dr. Michelle Marchand), T#154
23. Rodgers S. Downie J.
"Abortion: ensuring access." CMAJ July 4, 2006 vol. 175 no.
1 (Accessed
2014-02-14); Murphy S.
"NO MORE
CHRISTIAN DOCTORS." Protection of Conscience Project,
March, 2014; Fiala C, Arthur JH. "'Dishonourable
disobedience' - Why refusal to treat in reproductive healthcare
is not conscientious objection." Woman - Psychosomatic
Gynaecology and Obstetrics, 29 March, 2014. (Accessed
2014-10-11) Lakritz N.
"Doctors’ ability to say no must be limited." Calgary Herald,
2 July, 2014 (Accessed 2014-10-11); Cohn MR.
"Doctors who play God can be pastors, not physicians: Cohn."
Toronto Star, 29 July, 2014 (Accessed 2014-07-29)
24. Murphy, S.
"Promises,
promises: Canadian law reformers promise tolerance, freedom of
conscience. What happens after the law is changed is another story."
Protection of Conscience Project
25. Confidential Protection of Conscience
Project correspondence. The victim decided against legal
recourse because he/she was concerned that it would prevent
him/her from getting another job. He/she is now employed
elsewhere, but remains concerned that his/her employment or
professional opportunities may be adversely affected if
particulars are made public.
26. Downie J, McLeod C, Shaw J.
"Moving Forward with a Clear
Conscience: A Model Conscientious Objection Policy for Canadian Colleges
of Physicians and Surgeons." Health Law Review, 21:3, 2013,
para. 5.3;
Protection of Conscience Project Submissions to the College
of Physicians and Surgeons of Ontario Re: Physicians and the
Ontario Human Rights Code. (2008,
2014)
27. Downie J, McLeod C, Shaw J. "Moving
Forward with a Clear Conscience: A Model Conscientious Objection
Policy for Canadian Colleges of Physicians and Surgeons." Health Law Review, 21:3, 2013,
para. 5.3
28. 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, 69, 101
(Accessed 2014-02-23)