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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Ontario must amend its assisted dying legislation to recognize conscience rights

National Newswatch
Originally published in the online publication QP Briefing
4 April, 2017
Reproduced with permission

John Milloy*

Canadians ask a lot of our physicians – years of education, long hours, complex cases and demanding patients (full disclosure – I am married to a doctor).

Since June of last year, we have also been asking them to help some of their patients take their own lives.

No matter how you feel about assisted dying, you have to admit that having a role in the act is a burden that few of us would ever welcome. And yet as a society we seem to forget that doctors are no different. As Dr. Jeff Blackmer, a vice-president of the Canadian Medical Association, recently told the National Post: "The act is performed out of care and compassion … But for most [doctors], it doesn't make the psychological impact of that final, very definitive act, any less than it would be for anybody …"

Should we not respect the fact that some doctors and other health-care providers simply don't want to be involved in assisted dying for reasons of conscience?

In fairness, the current system does not force any medical professional actually to administer the procedure. But what happens when a patient under his or her care wants to access physician-assisted dying?

According to guidelines issued by the College of Physicians and Surgeons of Ontario, a doctor who objects must take steps to refer the patient to a physician or healthcare provider who is open to performing the procedure – what is technically known as an effective referral.

To some physicians this is tantamount to indirect participation. They have no interest in abandoning their patient and are prepared to work with them to try to address their concerns, including pain management, counselling and other measures. They do not, however, want potentially to be the starting point of the process that leads them to euthanasia or assisted dying and they refuse to be in involved in an effective referral.

The college has refused to recognize their concerns, resulting in a legal challenge from a number of physician groups.

The Ontario government recently introduced Bill 84, designed to bring provincial laws in line with the new federal law. Here was a perfect opportunity to clarify the rules around effective referrals and allow physicians to opt out fully due to reasons of conscience.

Yet the bill is silent on the matter.

This is not an impossible circle to square. Objecting physicians have asked the province to create a care co-ordination system that could be accessed by patients wishing to be assessed for medical assistance in dying, relieving their physician of the need to refer

It's a system that has been established in Alberta. There, an objecting physician can simply provide patients with the contact information of a care co-ordination service that will provide them with assistance.

The irony of the situation is that the Ontario government recently announced its intention to establish a similar co-ordination service in Ontario, making it simple to adopt conscience protections mirroring those that exist in Alberta.

And it's not just Alberta: A number of other provinces have adopted similar pathways for objecting physicians. In fact, experts in the field note that outside of Canada there is no jurisdiction allowing physician-assisted dying in the world that doesn't allow doctors to opt out of any form of involvement.

It is unclear why the Ontario Liberals are refusing to take this step. The Progressive Conservatives have taken up the cause and are promising to introduce amendments to the bill at committee stage. Among the most vocal Conservative MPPs have been prominent social conservatives like Monte McNaughton. Many see this group as being on the "wrong side" of numerous hot button issues like abortion, LGBTQ rights and the new sex-ed curriculum.

Let's not turn conscience rights into a "hot button" issue and dismiss the legitimate concerns of physicians.

Yes it is true that many physicians object to physician-assisted dying due to their religious faith – a faith whose tenets concerning care for the most vulnerable may have attracted them to the profession in the first place. Why should these beliefs be dismissed? What message is Ontario sending when we tell doctors that their religious faith or other deeply held values can't be accommodated the same way it is in other jurisdictions?

I remember the outrage at Queen's Park over the proposed Quebec charter of values. Aimed at further secularizing the government, the charter would have, among other things, banned those in the Quebec public sector, including doctors, from wearing religious symbols, such as   turbans or hijabs.

Ontario's Minister of Citizenship and Immigration at the time, Michael Coteau, put out a statement criticizing the legislation and confirming the Ontario government's commitment to "freedom of expression and religion." I remember that many of my colleagues cheered when an Ontario hospital blatantly tried to recruit Quebec doctors by highlighting Ontario's respect for their beliefs.

Why did we try to persuade doctors that our province respects their freedoms back then and yet can't take their freedom of conscience seriously now? What has changed?


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