Submission to the Canadian Provincial/Territorial Expert
Advisory Group on Physician-Assisted Dying
Re: Implementation of Supreme Court of Canada ruling
in Carter v. Canada
23 September, 2015
I.1 The Protection of Conscience Project is a
non-profit, non-denominational initiative that advocates for freedom of
conscience among health care workers. It does not take a position on the
acceptability of morally contested procedures. For this reason, almost half
of the questions in the Written Stakeholder Submission Form are
outside the scope of the Project’s interests.
I.2 The completed Written Stakeholder Submission
Form is in Appendix "A"
of this submission. The responses are numbered for reference purposes.
II. Scope of this submission
II.1 The responses in the Written Stakeholder
Submission Form (Appendix
"A") are supplemented, in some cases, by additional comments in Part
III. A protection of conscience policy is suggested in
III. Additional comments on
III.1 Role of Physicians (Response
III.1.1 While the Quebec euthanasia kits are to include
two courses of medication in case the first does not work,1
insufficient attention has been paid to the fact that euthanasia and
assisted suicide drugs do not always cause death as expected.2
III.1.2 Physicians willing to perform euthanasia as
well as to assist in suicide should disclose and discuss options available
in the event that a lethal injection or prescribed drug does not kill the
III.1.3 Physicians willing to prescribe lethal drugs
but unwilling to provide euthanasia by lethal injection should consider what
they may be expected to do if a prescribed drug incapacitates but does not
kill a patient.
III.1.4 The possibility of this complication provides
another reason for insisting that the physician who approves assisted
suicide or euthanasia should be the one to administer the lethal medication
or to be present when it is ingested. Expecting other health care workers to
deal with this complication is likely to increase the likelihood of conflict
in what will be an already emotionally charged situation.
III.2 Conscientious Refusal by
Healthcare Providers (Responses 15, 16)
III.2.1 Conscientious refusal within the context of
exemptions from criminal prosecution
III.2.1.1 Consensual homicide and assisted suicide
continue to be prohibited by the Penal Code in the Netherlands.
The Dutch Termination of Life on Request and Assisted Suicide (Review
Procedures) Act does not actually authorize either physician-assisted
suicide or euthanasia, but provides a defence to criminal charges for
physicians who adhere to its requirements.3
In this respect, it is analogous to the provisions of the Canadian
Criminal Code on therapeutic abortion from 1969 to 1988, and to the
exemptions offered in the Carter decision.
III.2.1.2 One of the requirements of the Dutch law is
that the physician must believe that the patient's request is
"well-considered." Another is that the physician must believe that the
patient's suffering is "lasting and unbearable." A physician who did not
actually believe one or both of these things and who killed a patient or
helped a patient commit suicide or aided or abetted either act would have no
defence to a charge of murder or assisted suicide.
III.2.1.3 Physicians who object to euthanasia and
assisted suicide for reasons of conscience usually do not believe that a
request for either can be "well-considered." Moreover, they may not believe
that a patient's suffering is "lasting and unbearable," particularly if the
suffering can be relieved. On both points, the available defence requires
actual belief; doubt is insufficient to provide a defence to a criminal
III.2.1.4 Since the legal prohibition of homicide and
assisted suicide is not displaced in such circumstances, there can be no
obligation on the part of objecting physicians to provide or refer for
euthanasia or physician-assisted suicide. They have no obligation to commit
or cooperate in the commission of a criminal offence.
III.2.1.5 Unlike the Supreme Court's 1988
Morgentaler decision, which struck down the abortion law entirely, the
Carter decision did not invalidate murder and assisted suicide laws
altogether, but only to the extent that the laws prevent homicide and
assisted suicide by physicians in accordance with the guidelines laid down
by the Court.
III.2.1.6 Thus, a physician accused of failing to
follow the Carter guidelines is still liable to be charged for
murder or assisted suicide, just as, prior to 1969, physicians who provided
an abortion under guidelines based on the case of R. v. Bourne were
liable to be charged if the abortion was not necessary to preserve the life
of the mother.4
III.2.1.7 The Carter guidelines include
requirements that an eligible patient must be competent, clearly consent,
have a "grievous and irremediable medical condition" and experience
"enduring suffering that is intolerable to the individual."5
In addition to moral considerations, an objecting physician may not be
satisfied that one or more of these conditions has been met.
III.2.1.8 As in the case of the Netherlands, the legal
prohibition of homicide and assisted suicide is not displaced in such
circumstances. There can thus be no obligation on the part of objecting
physicians to provide or refer for euthanasia or physician-assisted suicide
if they are not satisfied that all of the conditions providing a defence to
a charge of culpable homicide or assisting suicide have been met. They have
no obligation to commit or cooperate in the commission of a criminal
offence. On the contrary: they are obliged by law to refuse.
III.2.2 Suggested policy on physician exercise of
freedom of conscience
III.2.2.1 Appendix "B" provides a policy concerning the
exercise of freedom of conscience by physicians that, in the Project’s
experience, would be acceptable to most objecting physicians. It can be
modified to apply to other health care workers. It is consistent with
the Joint Statement on Preventing and
Resolving Ethical Conflicts Involving Health Care Providers and Persons
Receiving Care (1999);
the Canadian Medical Association Code of
the Canadian Medical Protective Association
publication, Consent: A guide for Canadian physicians (2006).
III.2.2.2 The policy provides seven alternative
responses for objecting physicians, reflecting the fact that different
ethical, moral or religious traditions may take different approaches to the
issue of complicity in morally contested acts. Further, within some
traditions, the facts of a particular case may influence the moral judgement
of a physician.
III.2.2.3 The policy’s provisions concerning providing
information to patients and two of the proposed alternatives [Appendix "B",
consistent with guidance recently approved at the recent Annual General
Council of the Canadian Medical Association with respect to assisted suicide
and euthanasia: that physicians should "provide complete information on all
options and advise on how to access a separate, central information,
counselling, and referral service."
III.2.2.4 CMA guidance noted in III.2.2.3 does not
preclude the other alternatives in the suggested policy for reasons given by
the Association to the Supreme Court of Canada:
The CMA's purpose, in developing and setting policy,
is not to override individual judgment or to mandate a standard of care.6
The CMA's policies are not meant to mandate a standard
of care for members or to override an individual physician's conscience.7
III.2.2.5 None of the responses obstruct patient access
to services. Some responses involve deliberate of facilitation of the
services. It is up to the physician to decide which response to choose in
1. Ubelacker S.
"Quebec MDs to get euthanasia guide to prepare for legalized assisted death:
Unclear whether other provinces and territories will adopt a similar
practice." The Canadian Press, 1 September, 2015 (Accessed
2. Groenewoud JH, van der Heide A.
Onwuteaka-Philipsen BD Willems DL van der Maas PJ, van der wal G., "Clinical
Problems with the Performance of Euthanasia and Physician-Assisted Suicide
in the Netherlands." N Engl J Med 2000; 342:551-556 February 24,
Termination of Life on Request and Assisted Suicide (Review Procedures)
Act (Accessed 2015-07-24).
4. R. v. Bourne (1939) 1KB 687
Carter v. Canada (Attorney General), 2015 SCC 5, paragraph 127 (Accessed
6. In the Supreme Court of Canada (On Appeal
from the Court of Appeal of British Columbia)
Affidavit of Dr. Chris Simpson, Motion for Leave to Intervene by the
Canadian Medical Association (5 June, 2014), para. 17 (Accessed
7. In the SCC on appeal from the BCCA,
Factum of the Intervener, The Canadian Medical Association (27 August,
2014), para. 9