Project Logo

Protection of Conscience Project

Service, not Servitude
Legal Commentary

Politicians wrestle with doctors' consciences in Victoria

Conscientious objection needs to be protected

20 April, 2017
Reproduced with permission

Paul Russell*

As the Victorian Ministerial Advisory Panel on "assisted dying" makes ready to release its interim report sometime in April, The Age newspaper turned its attention to the matter of conscience whether a doctor may refuse to take part in any action that would bring about the premature and deliberate death of a person.

Conscience - or the ability to draw upon one's own personal belief system in making a decision about an action - plays out at different levels in any debate on euthanasia and assisted suicide.

Trumpetted firstly on the announcement of any debate is the ability afforded to every member of parliament to vote on any bill according to their values and beliefs. This may take the form of a religious or ethical opposition to doctors killing their patients or assisting them to their suicide or it may simply be that a member of parliament objects to a particular form of a bill; recognising that the ideal of patient safety and the protection of people from possible abuse can never be practically achieved.

Secondly, we are assured that euthanasia and/or assisted suicide will be "voluntary": an action freely chosen by a competent individual without coercion and in full knowledge of all the relevant information. It will involve a decision of conscience or, at the very least, what is commonly known as a matter of informed consent. There are sound reasons to doubt that this would ever be an iron-clad reality.

The recent case reported from Holland of a elderly woman who cried 'No!' to her imminent death by euthanasia but was nevertheless injected with a lethal substance after her doctor instructed her family to hold her down while the deed was done, rightly casts a huge shadow over voluntariness.

Thirdly, and the focus of the recent article by Farrah Tomazin in The Age, we have the matter of conscience in respect to doctors and their rights of conscience. Tomazin opens her article with empty assurances:

"Doctors will have the right to refuse to help terminally ill patients who wish to die provided they don't obstruct people from seeking support elsewhere, under assisted dying laws to be drafted by the Andrews government."

But is that really the whole story? Tomazin lets the cat out of the bag:

"In a high-level report to be considered by cabinet, an expert panel is set to recommend allowing doctors to hold a 'conscientious objection' to physician-assisted death – similar to the provisions that allow them to refuse abortions in Victoria."

The provisions mentioned in the Victorian abortion laws are such that a doctor who holds a conscientious objection must refer the person to another doctor who does not hold to such objections. In the case of euthanasia and assisted suicide this would mean that a doctor who did not want to be complicit in the death of his or her patient would necessarily be required to be complicit in any case by the act of making a referral.

Would it be an "obstruction" if a doctor actively attempted to dissuade a person away from assisted suicide or euthanasia - even if only for a short time - for the sake of trying a different approach to their illness or their pain management? The article is silent on this as I expect will be the report. Yet precisely that kind of ethical and moral disuassion saved the life of Janette Hall in Oregon who has survived her prognosis by 14 years after taking the sound advice of her doctor.

Could it not also be the case that even a doctor who held no such conscientious objection might not fall foul of "obstruction" by way of wise advice to the effect that maybe waiting for a little while - for a myriad of good reasons - might not be a better course of action?

And what about other medical staff and services? The pro-euthanasia Australian Nursing and Midwifery Federation supported the inclusion of the possibility of nurses actively killing patients in the South Australian debate last year in a similar fashion to the provisions in the Canadian law. They, too, see the solution of conscience as simply a matter of referral.

Faith-based hospital services will likely receive some form of exemption based on a requirement to ensure that a ban on euthanasia or assisted suicide in their premises is made widely known to prospective patients. Such a provision was successfully challenged in the Belgian courts a few years ago exposing the reality that any exemptions will be subject to possible later change.

What then about public services such as hospice care where the prevailing view that killing patients should not sit along side palliative care informs their decision not to participate? Public funding brings its own problems as McGill University Hospital's palliative care service found out shortly after the Quebec euthanasia law was passed. He who pays the piper calls the tune!

At best, this fudging on conscience displays a very poor understanding of Ethics 101 dismisses the ability of doctors to exercise their autonomy while making sacrosanct the ability of a patient to exercise theirs.

Australian Medical Association President, Dr Michael Gannon shot a warning across the bows of such faux conscience provisions in a recent tweet:

"Any bill that compels Doctors to act against their conscience and 2,500 years of ethics should and will fail."

The provincial government of Ontario is currently considering its legislative response to the Ottawa government's law on assisted suicide which talks about a doctor with a conscientious objection needing to make an "effective referral". Their Bill 84 is silent on any further definition of "effective referral" yet the policy document of the College of Physicians and Surgeons of Ontario puts it this way:

"Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the patient. An effective referral must be provided. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, nurse practitioner or agency. The referral must be made in a timely manner to allow the patient to access medical assistance in dying. Patients must not be exposed to adverse clinical outcomes due to delayed referrals."

This paints any delay or even refusal to co-operate by a doctor as an "abandonment" of the patient to possibly "adverse clinical outcomes" when the opposite may well be the reality. Ultimately this may boil down to a situation where a doctor may have to justify why he or she did not want to see their patient made dead - precisely the reverse of the standards supposedly applied in these laws.

Time will tell as to whether such a recommendation survives scrutiny by Premier Andrews and whether it might eventually appear as part of a bill later this year. Opponents of euthanasia and assisted suicide have always maintained that such laws undermine the medical profession and relationships between doctors and their patients. It is not difficult to imagine that doctors who hold ethical objections to killing patients or helping them commit suicide will, under such a regime, find negotiating with their patients all the more difficult with a Sword of Damocles above their heads.

Paul Russell is director of HOPE: preventing euthanasia & assisted suicide, which is based in Australia. This article from his blog was edited and republished by Mercatornet with permission. 

Copyright © Paul Russell . Published by MercatorNet. You may download and print extracts from this article for your own personal and non-commercial use only. Contact MercatorNet if you wish to discuss republication.



Print Friendly and PDF