Appendix "B"

B1.    Disclaimer

Full Text

B1.1    Conscientious Objection includes the following disclaimer:

This policy does not apply to physician-assisted death or physicians' conscientious objection related to a potential physician-assisted death. The College recognizes that this is currently an issue which is in a state of development and may be revisited by the College at a later time.

B1.2    Associate Registrar Bryan Salte offered a more detailed explanation:

There is considerable uncertainty associated with physician-assisted death following the Carter decision. There may be legislation by the Federal or Provincial Government which addresses the issue before February 2016 when the Carter decision will come into effect if no new legislation is passed. The ethical implications of physician-assisted death have not been fully explored.

The situation of physician-assisted death can be revisited later, when it is clearer whether there will be legislation that addresses the issue and, if there will be, what the legislation will state.1

B1.3    Committee member Dr. Susan Hayton explicitly supported this, noting that "the boundaries of this whole area are very grey at the moment."2

B2.    Disclaimer inconsistent with opinion of the CMPA

B2.1    The Canadian Medical Protective Association (CMPA) took note of the CR No. 1 requirement that objecting physicians actually provide "all health services that are legally available and publicly funded" if referral were not possible or would cause a delay jeopardizing a patient's "health or well being."

B2.2    The CMPA understood this would include providing euthanasia and assisted suicide once Carter came into effect. 3

B2.3    This requirement has been substantially reproduced in Conscientious Objection:

When it is not possible to arrange for another physician or health care provider to provide a necessary treatment without causing a delay that would jeopardize the patient's health or well-being, physicians must provide the necessary treatment even if providing that treatment conflicts with their conscience or religious beliefs. (5.4b)

B3.    Disclaimer inconsistent with policy origin, previous statements

B3.1    The policy first proposed by Mr. Salte originated with the Conscience Research Group (CRG) and was virtually identical to it. The slightly modified text, approved in principle by College Council in January, 2015 (CR No.1) was also a nearly verbatim copy of the CRG policy.

B3.2    The CRG includes two euthanasia activists. One of them - Professor Jocelyn Downie - co-wrote the CRG policy largely replicated in CR No. 1. They were and are of the view that health care workers unwilling to kill patients or help them kill themselves should be forced to find someone else willing to do so.4 Thus, the CRG policy is meant to apply to all "legally permissible and publicly funded health services" - which, beginning in 2016, will include euthanasia and assisted suicide.

B3.3    Consistent with this, when, in 2014, Mr. Salte urged the registrars of all Canadian Colleges of Physicians and Surgeons to adopt a uniform coercive policy of the kind he and the CRG were proposing, he did not refer to abortion or contraception. Instead, he wrote, "Physician-assisted suicide, in particular, has the potential to challenge Colleges of Physicians and Surgeons to provide guidance to its members."5

B3.4    Further, when - with a virtual clone of the CRG group's text in his back pocket, so to speak - Mr. Salte proposed that the College adopt a policy on "ethical objection," he identified assisted suicide as one of a list of "issues which have resulted in controversy" - the others being abortion, birth control, fetal sex identification and genetic testing.6

B3.5    After the Carter decision, anticipating the legalization of physician administered euthanasia and physician assisted suicide, Mr. Salte stated publicly that CR No. 1 was intended to apply "broadly,"not only to "birth control and abortion," but "all other areas," not excluding physician assisted suicide and euthanasia. He explicitly confirmed that doctors who disagree with assisted suicide could "end up being disciplined," and "could . . . lose their jobs."7

B3.6    The statement is not surprising. Mr. Salte's willingness to discipline and dismiss physicians who refuse to participate in killing patients or helping them to commit suicide reflects an attitude entirely faithful to the source of the policy. It is also consistent with his explicit association of assisted suicide with the policy from the very beginning, and his linking of assisted suicide with abortion and birth control.

B4.    Disclaimer inconsistent with links between abortion and euthanasia

B4.1    It has been noted that the policy first proposed by Mr. Salte and CR No.1 are nearly verbatim copies of the CRG policy, produced by a group including two euthanasia activists, one of whom co-wrote the CRG policy. They argue that health care workers unwilling to kill patients or help them kill themselves should be forced to find someone else willing to do so because (they claim) it is agreed that health care workers who refuse to provide abortion and birth control can and should be compelled to refer patients to someone who will.8

B4.2    It should be obvious that this claim is sharply contested, but it demonstrates clearly that arguments supporting a policy of coerced participation in abortion and birth control also support a policy of coerced participation in euthanasia and assisted suicide.

B4.3    Consistent with this, when Mr. Salte proposed that the College adopt a policy on "ethical objection," he explicitly associated assisted suicide with abortion, birth control, fetal sex identification and genetic testing when indicating the potential scope of the policy (B3.4). After the Carter decision, he again explicitly associated abortion and birth control with euthanasia and physician assisted suicide (B3.5).

B5.    Principles support coercion of physicians to facilitate euthanasia

B5.1    Conscientious Objection purports to base its claims concerning physician obligations on 16 principles, listed in "Purpose" and "Principles."

B5.2    11 of the 16 principles are supportive of physician participation in euthanasia and assisted suicide, and a number have already been put forward as reasons to compel physician involvement in both.

B5.3    "The fiduciary relationship between a physician and a patient." (1. Purpose)

B5.3.1    "Fiduciary duty" is addressed in the first line of the College of Physicians and Surgeons of Ontario (CPSO) policy provided to College Council: "The fiduciary nature of the physician-patient relationship requires that physicians act in their patients' best interests."9

B5.3.2    Assisted suicide and euthanasia advocates argue that the procedures are in the "best interests" of some patients.

B5.3.3    The trial judge in Carter v. Canada10 acknowledged that physicians are expected to act in the "best interests" of patients (para. 311) and, when summarizing arguments in favour of euthanasia and assisted suicide, stated:

Individuals may experience such suffering (physical or existential), unrelievable by palliative care, that it is in their best interests to assist them in hastened death. Physicians are required to respect patient autonomy, to act in their patients' best interests and not to abandon them. Where those principles co-exist, assistance in hastened death may be ethically permitted. (para. 315e)

B5.3.4    In justifying her ruling in favour of physician assisted suicide, the trial judge referred to "a strong consensus that if physician-assisted dying were ever to be ethical, it would be only be with respect to those patients, where clearly consistent with the patient's wishes and best interests, and in order to relieve suffering." (para. 358)

B5.4    "Patient autonomy." (1. Purpose)

B5.4.1    Appeals to patient autonomy are central to the arguments of euthanasia and assisted suicide advocates. The Royal Society of Canada panel of "experts" asserted that, though not exclusive, "the value of individual autonomy or self-determination . . . should be seen as paramount."11

The commitment to autonomy, which as we have seen is a cornerstone of our constitutional order, thus quite naturally yields a prima facie right to choose the time and conditions of one's death, and thus, as a corollary, to request aid in dying from medical professionals.12

B5.4.2    The panel appealed to patient autonomy to justify its demand that health care workers unwilling to kill patients or help them kill themselves should be forced to refer patients to someone who would do so.8 The Carter plaintiffs, seeking legalization of physician assisted suicide and euthanasia, quoted extensively from the panel's discussion of autonomy and "wholeheartedly" embraced its report.13

B5.4.3    The Canadian Medical Association draft framework, Principles-Based Approach to Assisted Dying in Canada, offers guidelines for the implementation of physician-assisted suicide and euthanasia in accordance with the Carter decision. It includes the following "foundational principle" supportive of physician involvement in homicide and assisted suicide in the circumstances contemplated by the ruling:

Respect for patient autonomy: Competent adults are free to make decisions about their bodily integrity. . .14

B5.5   "A patient's right to continuity of care." (1. Purpose)

"Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians." (1. Purpose)

" Physicians have an obligation not to abandon their patients." (4. Principles)

B5.5.1    Whether or not lethal injection can be properly classified as a form of "care" is a dispute that has not been ended by Carter. Leaving that aside, health care workers who refuse to provide or facilitate euthanasia and assisted suicide may be accused of abandoning their patients.15

B5.5.2    Testifying during the trial in Carter, Professor Margaret Battin stated that "non-abandonment" is a "core value" or "norm of practice" for physicians.

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. . . for the physician to offer assistance in dying, it must be the patient's choice and it must also be done to help the patient avoid suffering that is either intolerable or about to be so.16

B5.5.3    Professor Battin was called by the plaintiffs to help to make the case for legalization of physician assisted suicide and euthanasia. Plaintiff witnesses were prepared to testify with the help of Professor Jocelyn Downie,17 co-author of the CRG policy largely copied in CR No. 1.

B5.5.4    Dr. David Grube of Oregon is a member of a euthanasia activist group who has helped about 30 patients commit suicide. Responding to reports that physicians are reluctant to lethally inject patients, he said, "[Y]ou have to realize we're no longer able to cure now; these are people who can't be healed," he said, "and we can't abandon them."18

B5.5.5    Conscientious Objection paraphrases euthanasia/assisted suicide advocate Dr. Derryk Smith, who, in responding to a strong statement against mandatory referral by CMA President Dr. Chris Simpson, said, "Patients seeking assisted dying should not be denied access to medical care just because of the beliefs of their doctor."19

B5.6    "Physicians should not intentionally or unintentionally create barriers to patient care." (1. Purpose)

"Physicians have an obligation not to interfere with or obstruct a patient's right to access legally permissible and publicly funded health services." (4. Principles)

"Physicians' exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services." (4. Principles)

B5.6.1    Dr. James Downar, a euthanasia advocate, has said that conscientious objection within the context of killing patients or helping them commit suicide "can serve as a barrier."20

B5.6.2    What constitutes a "barrier" or "disadvantage" is a polemical issue. In Ontario, for example, Facebook crusaders believe that an unacceptable "barrier" or "disadvantage" exists if a patient has to drive around the block or cross the street to obtain birth control pills.21

B5.6.3    The premise of Conscientious Objection- is that it is necessary to force objecting physicians to help patients obtain birth control in order to ensure patient "access" or to prevent "disadvantage" or "barriers it care." However, most physicians prescribe contraceptives, birth control is widely available, and the premise is unsupported by any evidence.

B5.6.4    In contrast, only a minority of physicians provide euthanasia and assisted suicide even where the procedures have been legal for years.22 If one accepts the reasoning of Conscientious Objection, it is even more necessary to force objecting physicians to help find someone willing to kill a patient or assist in suicide than there is to force them to refer for contraception.

B5.7    "Medical care should be equitably available to patients whatever the patient's situation, to the extent that can be achieved." (1. Purpose)

B5.7.1    The Canadian Medical Association draft framework, Principles-Based Approach to Assisted Dying in Canada, offers guidelines for the implementation of physician-assisted suicide and euthanasia in accordance with the Carter decision. It includes the following "foundational principle" supportive of physician involvement in homicide and assisted suicide in the circumstances contemplated by the ruling:

Equity: To the extent possible, all those who meet the criteria for medical aid in dying should have access to this intervention. . .14

B5.8    "The College has a responsibility to impose reasonable limits on a physician's ability to refuse to provide care where those limits are appropriate." (1. Purpose)

B5.7.1    The Royal Society of Canada panel of "experts" argued that physicians or other health care workers unwilling to provide euthanasia or assisted suicide "are duty-bound to refer them in a timely fashion to a health care professional who will." The panel described this as a 'limitation' on freedom.23

B5.9    "The College of Physicians and Surgeons has an obligation to serve and protect the public interest. The Canadian Medical Profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services." (1. Purpose)

B5.9.1    This principle is identical to statements found in the policy proposed by the Conscience Research Group (CRG), from which CR No. 1 was taken. As noted in B3.1 and B3.2, the CRG included euthanasia activists who were and are of the view that health care workers unwilling to kill patients or help them kill themselves should be forced to find someone else willing to do so. This statement in the CRG policy is meant to apply to all "legally permissible and publicly funded health services" - including euthanasia and assisted suicide.

B5.9.2    As noted in B3.1,the CMPA took note of that a demand that objecting physicians must provide "all health services that are legally available and publicly funded" would include providing euthanasia and assisted suicide once Carter came into effect. Logically, a requirement "to ensure . . . access to the provision of legally permissible and publicly-funded health services" must entail the provision of euthanasia and assisted suicide.

B6.    Unsatisfactory reasons offered to support the disclaimer

B6.1    Questioning the reasons

B6.1.1    When Mr. Salte proposed the coercive policy in July, 2014, it was well known that the Supreme Court of Canada might well legalize physician assisted suicide and euthanasia. That possibility had become a widespread prediction by the time the committee returned CR No. 1 to Council for approval in principle in January, 2015, but there was no reference to the "very grey" areas later discovered by Dr. Hayton. And Mr. Salte continued to advocate for the coercive policy even after the ruling in Carter.

B6.1.2    Recall that, when Mr. Salte urged the registrars of all Canadian Colleges to adopt a policy forcing objecting physicians to refer for morally contested procedures, he specifically noted to its importance in relation to physician-assisted suicide (B3.3). He did not then express concern that "the ethical implications of physician assisted dying [had] not been fully explored." Why not?

B6.1.3    Again, when Mr. Salte proposed that the College adopt a policy on "ethical objection," he included assisted suicide among the list of controversial services (B3.4). He did not then suggest that the College wait to see "whether there will be legislation that addresses the issue and, if there will be, what the legislation will state." Why not?

B6.1.4    After the Supreme Court of Canada ordered the legalization of euthanasia and physician assisted suicide, Mr. Salte stated publicly that CR No. 1 was intended to apply "broadly," to all areas of practice, not excluding physician assisted suicide and euthanasia. He did not then worry that there was "considerable uncertainty associated with physician-assisted death." He did not then say, "This is currently an issue which is in a state of development." On the contrary, he defended the proposition that physicians should be disciplined or fired if they refuse to at least help to find someone willing to kill patients or help them commit suicide (B3.5, B3.6). Why so bold then, so cautious now?

B6.2    Answering the questions

B6.2.1    The timing of the shift in attitude suggests answers to these questions. All of the concerns about "ethical implications," "grey areas," "considerable uncertainty," and lack of legislation arose suddenly in March, 2015 - that is, just after Mr. Salte and the committee drafting the policy were confronted by overwhelming opposition to CR No. 1.24

B6.2.2    The introduction of the disclaimer could be seen as a mere tactical withdrawal: an attempt to secure passage of the policy, at least in some form, by defusing opposition that has been amplified by the pending legalization of assisted suicide and euthanasia. Supporters of CR No. 1 may simply be prepared to wait, expecting to have an easier time imposing a policy that will force physicians to do what they believe to be wrong once physicians and the public have become as comfortable with assisted suicide and euthanasia as they are with abortion and contraception.

B6.2.3    Alternatively, the disclaimer may indicate that at least some committee members realized that if the College can force physicians to do what they believe to be wrong with respect to abortion and contraception, there would seem to be no reason why the College should not also be able to force physicians to do what they believe to be wrong with respect to killing patients and helping them commit suicide. That would explain Mr. Salte's suggestion that the Council "may wish to consider whether there is something different about physician assisted death that should result in it being addressed differently than other issues of conscientious objection."25

Notes

1.  Salte BE. Memorandum to Council re: Draft Policy- Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) p. 5.

2.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 12.

3.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 9-10.

4.  Professor Jocelyn Downie and Professor Daniel Weinstock are members of the faculty of the "Conscience Research Group"  (CRG), the ulitmate source of the policy first proposed by Mr. Salte (See Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Saskatchewan Re: Conscientious Refusal, Appendices "A" and "B."  With Udo Schuklenk and others, they were members of a Royal Society of Canada panel of "experts" who recommended that health care workers unwilling to provide euthanasia or assisted suicide should be compelled to refer patients to someone who would do so. See 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).  Referring to the Supreme Court of Canada hearing in Carter, Shcuklenk noted the Project's joint intervention asking the Court to "direct parliament to ensure that health care professionals would not be forced to assist in dying if they had conscientious objections."  He commented, "I am not a fan of conscientious objection rights anyway, so I hope the Court will ignore this." Schuklenk U.  "Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation." Udo Schuklenk's Ethx Blog, T, Thursday, October 16, 2014 (Accessed 2015-02-22)

5.  Letter from Bryan Salte to the Registrars of Colleges of Physicians and Surgeons in Canada. Redacted in Document 200/14, College of Physicians and Surgeons of Saskatchewan, Report to Council from the Registrar, 31 July, 2014, p. 8.

6.  Salte B. Memorandum to Council re: Possible Policy or Guideline - Physicians who have an ethical objection to provide certain forms of medical services, 31 July, 2014 (CPSS No. 200/14).

7.  "Saskatchewan doctors could face discipline over assisted suicide." Global News, 13 February, 2015 (Accessed 2015-05-30). Annotated transcription at Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Saskatchewan, Re: Conscientious Refusal, Appendix "C": Interview of Associate Registrar, College of Physicians and Surgeons of Saskatchewan Re: CPSS Draft Policy Conscientious Refusal, CI.2, CI.3; CIII.2 to CIII.4, CIV.1, CV.1

8.  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).

9.  College of Physicians and Surgeons of Ontario Policy Statement #2-15, Professional Obligations and Human Rights, Sept. 2008 (Reviewed and updated March, 2015) p. 1. In Salte BE. Memorandum to Council re: Draft Policy, Conscientious Objection, 20 March, 2015 (CPSS No. 73/15) , p. 18-25

10.  Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia. (Accessed 2015-05-31)

11.  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. 41 (Accessed 2014-02-23).

12.  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. 45 (Accessed 2014-02-23).

13.   In the Supreme Court of British Columbia, between Lee Carter, Hollis Johnson, Dr. William Shoichet and the British Columbia Civil Liberties Association and Gloria Taylor (Plaintiffs) and the Attorney General of Canada and Attorney General of British Columbia (Defendants), Written Submissions of the Plaintiffs, dated 1 December, 2011, para 66 (Accessed 2015-06-02).

14.  Canadian Medical Association, Principles-Based Approach to Assisted Dying in Canada (Backgrounder) (Accessed 2015-07-21)

15.   Angell M., Lowenstein E. Letter re: Redefining Physicians' Role in Assisted Dying. N Engl J Med 2013; 368:485-486 January 31, 2013 DOI: 10.1056/NEJMc1209798 (Accessed 2015-05-31)

16.  Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia, para. 239-240 (Accessed 2015-05-31)

17.  Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia, para. 124 (Accessed 2015-05-31)

18.  Kirkey S.,  "How to end a life? Canada can look abroad for guidance as it seeks best method for assisted suicide." National Post, 10 April, 2015 (Accessed 2015-07-04)

19.  "DWD responds to CMA statement on assisted dying."  Dying with Dignity, 6 March, 2015 (Accessed 2015-03-06)

20.  Grant K. "Canadian doctors drafting new rules in case doors open to assisted suicide." Globe and Mail, 5 February, 2015 (Accessed 2015-06-01)

21.  Murphy S. "'NO MORE CHRISTIAN DOCTORS!' Crusade against NFP-only physicians." Protection of Conscience Project.

22.  Murphy S. "Redefining the Practice of Medicine: Euthanasia in Quebec-An Act Respecting End-of-Life Care (June, 2014)" Appendix "C": Statistics

23.  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. 61 (Accessed 2014-02-23).

24.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 3.

25.  Salte BE. Memorandum to Council re: Policy on Conscientious Objection, 9 March, 2015 (CPSS No. 38/15) p. 1.

Prev | Next