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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Re: Joint intervention in Carter v. Canada

Selections from oral submissions

Supreme Court of Canada,
15 October, 2014

Sean Murphy*


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 an oral submission.

Annotated selections from the oral submissions relevant to freedom of conscience are found below.  In each case, readers can access the Supreme Court webcast through the linked image.  Time stamps are cited to allow the relevant section of the webcast to be located.  On the Supreme Court website, use  "full screen" view when dragging the slider button to the desired time stamp.

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Joseph Arvay, Q. C. (Counsel for the Appellants)
Arvay[74:27/491:20 to 75:04/491:20]
Now let me finally cut to the chase, to the heart of this appeal.

The most vociferous opposition to our challenge comes from some church groups, and some disabled organizations. 
To the church groups we simply say that we respect your religious views, but they cannot, in this secular society,  trump our clients' constitutional rights. 

And no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so. An obligation to at least facilitate euthanasia and assisted suicide was implicit in Mr. Arvay's notice of claim. His witness, Professor Margaret Battin, implied that a physician's refusal to provide assisted suicide or euthanasia would amount to unethical abandonment of patients. It appears as an explicit assertion in the Royal Society report he introduced as evidence at trial. Professor Jocelyn Downie, one of the authors of the report, instructed the appellant's expert witnesses.

Jean-Yves Bernard (Counsel for the Attorney General of Quebec)
[170:09/491:20 to 172:47/491:20]
Mr. Justice LeBel:  Now, if you define this act as treatment, then the conscientious objection of, uh, doctors or others involved in the health care system, is that taken into account?

M. Jean-Yves Bernard:  Yes.  I see that my time is about to expire, but I would like to look at a couple of provisions of our legislation.  The medical professional cannot be forced to give this care if they have conscientious objection.  At that point they have to refer to other medical authorities who will take the necessary steps to ensure that someone else who is willing to take on the task be in a position to provide end of life care.  But an individual doctor is never compelled to act against their conscience.

. . . You will find our legislation at Tab 35 of our book of authorities.  And I would invite you to, to read Section 1 of the Act, which is the intent of the Act.  And then you have the definition section of end of life care, palliative care, and, physician assisted dying.  And in Section 29 and 26 you will see what needs to be done before any assistance can be provided. . . . There is also Section 50, which is the provision that allows a doctor to refuse to administer aid in dying. . . .Counsel for the Project later demonstrated that this section of the statute does not provide adequate protection. See below.

Harry Underwood (Counsel for the Canadian Medical Association)

Justices, it's not my brief on behalf of the Canadian Medical Association to speak for or against legalization of physician assisted death.  I will instead try to show you why physician participation, if legalized, in the practice if legalized, should be considered a matter of conscience and some of the  implications that would arise for its adoption for the real world practice of medicine in Canada which is generally reflected in the evidence.


For doctors, whether the practice conforms to the law does not exhaust the question of whether they can support it, and it's important that the public understand that.  Doctors do not wish to be regarded as mere medical technicians.  They wish to discharge their professional responsibilities according to ethical principles that are generally accepted and that they can accept as individuals.  For many doctors, the question of whether they, as individuals, should participateIt is important to understand what the CMA means by "participate." A more restrictive term is used below. in physician assisted death is one that goes to the root of their professional responsibilities.  The question's been much considered within the profession, including through initiatives taken by the CMA described in our factum.  The CMA has a long-standing policy on euthanasia and assisted suicide.  It was referred to in Rodriguez.  Ethical considerations have historically been considered as barring practices such as physician assisted death.


And that's because the policy reflects, as the first principle of medicine, the doctor's duty to secure patient well-being.  It refers to patient autonomy as another relevant principle, and that, of course, requires respect for patient values and treatment goals.  The duty to preserve life has long been seen as the cornerstone of the first principle.  And in the case of incurable illness, the recognized duty has been seen as providing physical comfort and support.   And the policy opposed physician assisted dying for these reasons.


But the concept of patient well-being is capable of an interpretation which encompasses the patient's right to choose death, where the alternative is certain suffering, a choice which is also supported by the concept of patient autonomy.  Thus, going back to first principles, the two approaches are each possible.


The CMA's task as policy maker is to express values that are subscribed to by the medical profession and apply them to the practical questions that doctors face.  With the profession now divided between the two positions, each defensible on the basis of established medical ethical considerations and compassion for the patient, the CMA has decided to accept that physician assisted death, if it should become legal, may properly be undertaken by physicians who can square their participation with their own consciences, without overriding the consciences of those who object to performing"Perform" (as opposed to the earlier reference to "participate")would seem to restrict respect for choices only to refusal to directly kill patients. It is not clear from this statement that the CMA will encourage equal respect for those who refuse to facilitate killing by referral or other means. it.  And this is reflected in a resolution taken only this last August by the membership which we described in the factum.  And the CMA policy will be amended  to reflect this more fully.


Consistent with the matter as being a matter of conscience, the law should offer protection to those physicians who choose to participate in physician assisted death if it is legalized, and those who do not. A good faith attempt to comply with the legislative regime ought to be a complete bar to civil, criminal and disciplinary charges.The preceding statement does not say that the law should offer equal protection. Note that the "complete bar" refers only to those who participate in killing patients, not those who refuse.  As well, the choice of those who do not wish to perform"Perform" (as opposed to the earlier reference to "participate")would seem to restrict respect for choices only to refusal to directly kill patients. It is not clear from this statement that the CMA will encourage equal respect for those who refuse to facilitate killing by referral or other means. the practice must be respected.  Moreover, if doctors are to fulfil the role that the trial judge has designated for them, they must have the option of refusing to provide it where they consider it inappropriate to do so in light of the specified criteria and the patient's best interests


Next, the CMA submits that the critical risks associated with physician assisted death are those grouped under vulnerability, comprising not just undue influence, bu the unaddressed fears and misconceptions which may motivate a patient. It's imperative to ensure that the choice of physician assisted death is free and fully informed. And it's clear from the evidence accepted by the trial judge that the risks associated with the decision are real. Repeatedly she found that the risks can be offset by rigorous assessments undertaken by doctors to rule them out.


But there are important real world, real world constraints that doctors and patients face, which were so much a matter of concern for this court in Chaoulli. It would be wrong to close our eyes to them.


The trial judge found that doctors are already experienced in the assessment of patients' competence and voluntariness. But the considerations affecting patients expressing a wish to die are quite outside the norm. Many such patients who are old or chronically infirm both worry about being a burden to others. Many such patients are afflicted with hopelessness, with depression, which may affect the power to make a rational decision, and which may be, for a doctor who doesn't know the patient, difficult to diagnose. Many such patients fear dying in hospital, in pain. And all these can contribute to patient vulnerability.


The problem with ensuring voluntariness requires that patients' values and goals with respect to end of life treatment are subject to a full discussion between the patient and his or her GP, grounded in trust. There are some things about a patient that a doctor can learn only over time. Multiple interviews and gathering collateral information, as the trial judge commends, can hardly substitute for a long term relationship with the patient, and the looming concern is that discussions will occur and decisions will be taken in the emergency room or the ICU when patients are in crisis.


It's here we come face to face with real, real world problems that exist in Canada. For example: not everyone has a family doctor. The majority of Canadians do not have a long term relationship with one.


Second: for those who do, decisions with respect to end of life wishes are not routinely held between doctor and patient in advance of need. Patient doctor discussions on end of life care have to become part of the routine of family practice, as the CMA has advocated. They need to be compensated, for example, under provincial fee schedules, as American health insurers are beginning to do.


Third: it's still the case that not all general practitioners have a good understanding of what palliative care can provide. This requires adequate education and training in palliative care for GPs. For many years this wasn't very much available, although concerted efforts are now being made within the profession to correct this.


Fourth: patients's goals may change with treatment and with their adaptation to their disabilities, but fewer and fewer general practitioners follow their patients when they're admitted to hospital. Ideally, one day in Canada, general practitioners will act as primary palliative care providers in the community, in hospitals, in hospices, in patients' homes, but no one would say that we are there yet.


Fifth: specialist palliative care should be universally available on referral, as the CMA advocates. Palliative care consultations can alleviate fears, and the treatment itself can brighten patients' outlooks, as often happens, such that patients no longer deserve to, no longer desire to die. But palliative care services are a patchwork across the country, and we have yet to develop a national palliative care strategy to remedy this, although it's been called for for years by the CMA, among others.


The trial judge noted that, in Oregon, most of the affected patients are receiving hospice care, where it's likely that treatments, treatment options are fully explained, and adequate palliative care is available to the patient. In any event, Oregon has some of the highest rates of end of life communication in the U.S.


In the Netherlands and in Belgium there's a much greater likelihood that a patient will have a long term relationship with a GP. There are distinct differences that apply between those compact, homogenous places and our diverse multi-jurisdictional country. Whichever way this case is decided, this court can, by showing its concern, highlight the risk of piecemeal reform.


In the event that the law is to change, Canada can't simply adopt the Oregon model without putting proper institutional supports in place. They have to be considered alongside any new legislative regime. To ensure that this occurs, interested parties must have the time to organize themselves and the opportunity to present their case to parliament and to the public. There's no doubt that doctors will be among them.


Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project)

  . . . We represent the Catholic Civil Rights League, the Freedom Alliance and the Protection of Conscience Project.   And just from the name of our clients, we represent a group that is diverse.  The first of the two interveners that are identified are what Mr. Arvay might call "church groups."  The second one is the Protection of Conscience Project, is an intervener that does not take a position on the merits of the appeal. . .


. . . Our submissions today go to the issue of remedy.  Because our clients don't take a position on the appeal, the submissions we make, and that's probably why I'm last, go to what happens if you decide to allow the appeal.  And our clients, though they are diverse in their views on the merits of the appeal, their position and their submission to you is that in the event that you declare that Section 241 is invalid, you should at the same time provide direction to the legislature, in addition to providing the legislature time to remedy the problem, to give direction to the legislature that is sufficient to protect the freedom of conscience of healthcare providers who object to directly or indirectly participating in physician assisted death. 


And, and just before I get into the three points that I want to make that are set out in our outline, I listened with interest to the comments made by counsel for the Attorney General for Quebec, who said that the Quebec statute, which at some point may come before you, is intended to do precisely that, and I would say to you it does exactly, it does nothing of the sort.  And it's precisely the sort of thinking that, in our submission, ought to be protected against.


The three points that I want to develop briefly, I'm going to take you briefly just to a couple of items in my condensed book are the following.

The first one is that freedom of conscience protects sincerely held moral beliefs.

The second point I want to make is that healthcare providers have no legal duty to kill, and  - this is more to the point of the submissions I want to make - or to assist in killing patients.

And the third one is that direction to the legislatures is necessary to protect freedom of conscience, especially when we hear the counsel for the Quebec Attorney General say that the province has done exactly that when I say they haven't.


So I want to start now with the first of the three submissions I'm making briefly.  And that deals with the freedom of conscience protecting sincerely held moral beliefs.  This court has only addressed  section, the freedom of conscience in Section 2(a) in one case, and that's in Justice Morgentaler's reasons, in, uh, Justice Wilson's reasons in Morgentaler.  I've given you the relevant abstract at my compendium at Tab 3, and at page 178, she notes there, that freedom of conscience is personal morality which is not founded in religion and conscientious beliefs which are not religiously motivated.  And it's important to note that while religion obviously has views on killing, it's possible to have moral views about killing that are divorced from religion. 

And in terms of how those are to be protected, we say that the test for triggering a freedom of conscience claim should be the same test as the test for triggering a freedom of religion claim, which is as set out in the Anselem case: 

  • Does the claimant have a moral practice or belief that calls for a particular line of conduct? 
  • And, secondly, is  he or she sincere in his or her belief? 

And there is no reason, in my submission, to distinguish between freedom of conscience and freedom of religion in respect of the protection that Section 2(a) affords.


The next point I want to make is, deals with there being no legal duty to kill or assist in killing patients.  And I have extracted, in Tab 6 of the compendium, an extract from the Rodriguez trial decision, where the court there notes in the, in paragraph 15, that dealing with the subject of physician assisted suicide there could be no duty at law on a  physician to assist the petitioner in achieving her goal, which, of course, in that case, was death. 

And in this case, we hear from Mr. Arvay that there is no suggestion that a particular physician should be compelled to assist in suicide or perform euthanasia."And no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so." The issue that we're concerned with, that my client is concerned with, is what is, what happens if one is asked to assist indirectly. 

Royal Society report
Click to enlarge


And the trial judge admitted into evidence an expert report by the Royal Society of CanadaThe report was introduced by Mr. Arvay. that I have extracted at Tab 9, and you will see from the report that what the Royal Society calls for, that's uh, I've sideboarded the portion, it begins three lines down, is that where a physician decides that he or she is not going to help kill a patient, he or she has a duty to refer the patient to somebody who will kill them.


"And our submission to you . . . is that no health care professional should be at legal jeopardy, because, including professional jeopardy, because he or she refuses to kill patients or take steps to indirectly assist patients who wish to kill themselves."

And, you know, it's not like we're talking here about someone who's got a hangnail, you're talking about something that, for many people, is a very deeply, deeply held view, whether it's religiously based or not.  And the view here from the Royal Society is that where this right, where this right is recognized, that physicians have to cooperate in allowing for physician assisted suicide to happen, even if they are not the ones who are prepared to provide it.  And our submission to you on behalf of our intervener clients, is that no health care professional should be at legal jeopardy, because, including professional jeopardy, because he or she refuses to kill patients or take steps to indirectly assist patients who wish to kill themselves. 


I now go to my third point, which is that the direction is necessary.  And as we have heard, the court has heard today in submissions that you've already received, Quebec is the first province to adopt legislation expressly permitting physician assisted death.  And I have extracted, at Tab 15, a relevant section of the statute, it's section 44,Section 44 was the section number in the original bill; it is now Section 50.  that I want to refer you to, and this is the one that counsel for the Attorney General of Quebec said protected physicians rights.


Bill 53, Section 50
Click to enlarge

If you take a look at  section 44,Section 44 was the section number in the original bill; it is now Section 50. it provides that the Act does not limit the right of health care professionals to refuse - pause there - in accordance with their code of ethics - to provide or take part in providing end of life care for reasons of conscience.  And so the question, of course, is, well, what does the code of ethics say?  And what will the physicians' societies say to people who have a moral view on this issue, that opposes not only the act of killing, but also the act of assisting in killing, even including by making the referral?


Code of Ethics for Physicians-Quebec
Click to enlarge

When you turn over the next tab and you find that the code of ethics for physicians in Quebec, which we have extracted, provides in Section 24 that the physician must, where his personal convictions prevent him from prescribing or providing professional services, acquaint the patient with the convictions and advise him of the possible consequences, and then goes on to say the physician must then offer to help the patient find another physician. 

So for the physician who opposes physician assisted suicide has that, opposes on the basis of conscience, believes that it is morally wrong according to the person's conscience to participate in physician assisted suicide.  Remember, this is an act that, until a few years ago, was a criminal act in Canada.  A criminal act.  For someone to refuse to engage in a criminal act is now being told, in effect, you have to cooperate to the extent that you refer them to somebody who will actually  kill them.This statute is recommended by Mr. Arvay as a suitable model for new legislation. See Factum of the Appellants, para. 156, note 312.

And it's our respectful submission that if this view is adopted in Canadian law, health care providers may be compelled to act, directly or indirectly, as is set out in Quebec, against their constitutionally protected, sincerely held moral beliefs, and that those moral beliefs, in my submission, merit constitutional protection, and that this court, if it decides to allow the appeal and directs the legislature that the legislation should be fixed, in my submission you should, at the same time, provide that any fix to legislation take into account the constitutional rights of those who object, as a matter of conscience, to killing, directly or indirectly, other people. 

Thank you.



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