Submission to the College of Physicians and Surgeons of Nova 
			Scotia
			
			Re: Standard of Practice: Physician Assisted Death
			6 February, 2016
			         
				
				
    
        
            Full Text
        
     
	Abstract
	The Project considers the proposed standard of practice satisfactory with 
	respect to the accommodation of physician freedom of conscience and respect 
	for the moral integrity of physicians. Neither direct nor indirect 
	participation in euthanasia and assisted suicide is required.
	The Project offers simple and uncontroversial recommendations to avoid 
	conflicts of conscience 
	associated with failed assisted suicide and euthanasia attempts and urgent 
	situations. 
	The standard does not adequately address the continuing effects 
	of criminal law. The College has no basis to proceed against physicians who, 
	having the opinion that a patient does not fit one of the criteria specified 
	by Carter, refuse to do anything that would entail complicity in 
	homicide or suicide. College policies and expectations are of no force and 
	effect to the extent that they are inconsistent with criminal prohibitions.
	While the standard is satisfactory with respect to freedom of conscience, 
	the fundamental freedoms of physicians in Nova Scotia will remain at risk 
	as long as the College Registrar and others persist in the attitude and 
	intentions demonstrated in his presentation to the Special Joint Committee 
	on Physician Assisted Dying. 
	
	TABLE OF CONTENTS
	
	
	II.1    Failed assisted suicide and 
	euthanasia 
 II.2    Urgent situations
	II.3    Project recommendations
	
	
	IV.1    The Registrar 
	before the Special Joint Committee on Physician Assisted Dying
	IV.2    The Registrar, the Conscience Research Group, and 
	"effective referral"
IV.3    The 
	Registrar's intentions
IV.4    The 
	Registrar's complaint
IV.5    An ethic 
	of servitude, not service
	
	
	A1.    
	Carter criteria for euthanasia and physician assisted suicide
	A2.    
	Carter and the criminal law
	A3.    
	Carter and freedom of conscience and religion
	
	B1.    Attempts 
	to coerce physicians: abortion
	B2.    Plans to 
	coerce physicians: assisted suicide and euthanasia
	B3.   Plans to coerce 
	physicians: the CRG Model Policy
	B4.    CRG convenes 
	meeting with College representatives
	
	I.    Outline of the submission
	I.1    The Project does not take a position on the 
	acceptability of euthanasia and physician-assisted suicide. For this reason, 
	much of the draft 
	
	Standard of Practice: Physician Assisted 
	Death (SPPAD) is outside the 
	scope of this submission.
	I.2    From the perspective of freedom of conscience, the Project 
	considers SPPAD satisfactory. In particular, accommodation of physician 
	freedom of conscience and respect for the moral integrity of physicians is 
	reflected by the fact that effective referral is recommended, but not 
	required. This is consistent with the position of the Canadian Medical 
	Association in its recent submission to the College of Physicians and 
	Surgeons of Ontario.1
	I.3    The first issue raised in this submission concerns 
	failed assisted suicide and euthanasia attempts and urgent situations, which 
	can cause conflicts that can adversely affect patients, families and 
	objecting health care providers. Simple and uncontroversial recommendations 
	are offered to avoid these problems. (Part II)
	I.4    The submission next points out the legal effect of 
	Carter v. Canada with respect to the law on homicide, suicide, parties to 
	offences, counselling offences and conspiracy, and that counselling 
	(recommending) suicide remains a criminal offence. In some circumstances 
	this will limit the power of the College to enforce demands for physician 
	participation. (Part III)
	I.5    Some remarks by the Registrar of the College made in his 
	appearance before the Special Joint Committee on Physician Assisted Dying 
	are addressed in Part IV.  
	
	II.    Avoiding foreseeable conflicts
	II.1    Failed assisted suicide and 
	euthanasia
	II.1.1    Euthanasia and assisted suicide 
	drugs do not always cause death as expected.2 As will be seen presently, this 
	issue appears to have legal implications with respect to a physician's 
	criminal responsibility, and also implications for physician freedom of 
	conscience.
	II.1.2    A 2014 survey of Canadian Medical Association 
	members indicated that more physicians were willing to participate in 
	assisted suicide (27%) than euthanasia (20%).3,4,5,6
	II.1.3    However, a physician who agrees to help a 
	patient commit suicide would seem to have accepted an obligation to do 
	something that will result in the patient's death, and to do it according to 
	accepted standards. This obligation seems implicit in the agreement.
	II.1.4    In the case of a failed physician-assisted 
	suicide that incapacitates a patient, it is likely that the responsible 
	physician will be expected to fulfil his commitment to help bring about the 
	death of the patient by providing a lethal injection or finding someone 
	willing to do so. The expectation would be stronger if the patient had 
	sought assisted suicide to avoid the kind of incapacitation caused by the 
	failed suicide attempt.
	II.1.5    Here the issue of physicians willing to assist 
	in suicide but unwilling to provide euthanasia becomes acute. Those willing 
	to assist with suicide but not euthanasia may be reluctant or unwilling to 
	ask another colleague to kill the patient. 
	II.1.6    Moreover, the Carter ruling limits the provision 
	of euthanasia to competent patients. Thus, to ask physicians to kill a 
	patient who has been rendered incompetent by a colleague's failed attempt 
	would seem to expose them to prosecution for first degree murder or, at 
	least, assisted suicide. Even the legal position of an administering 
	physician faced with a patient incapacitated by the first course of 
	medication seems doubtful.
	II.2    Urgent situations
	II.2.1    It is often assumed that, since euthanasia and assisted suicide 
	require extensive preliminary consultation and preparation before they can 
	be authorized, they can never be urgently required. 
	II.2.2    That presumption is challenged by testimony 
	taken by the Quebec legislative committee studying what later became the 
	province's euthanasia law (An Act Respecting End of Life Care). 
	Representatives of the College of Pharmacists of Quebec agreed that the 
	provision of euthanasia would not seem to involve "the same urgency" as 
	other kinds of procedures, and that arrangements could normally be made to 
	accommodate conscientious objection by pharmacists because the decision 
	could be anticipated.7 However, they also stated that situations may evolve 
	more quickly than expected, and that (for example) palliative sedation might 
	be urgently requested as a result of respiratory distress precipitated by 
	sudden bleeding.8
	II.2.3    The pharmacist representatives distinguished 
	between making a decision that euthanasia or assisted suicide should be 
	provided - a decision which might take days or weeks - and a decision that a 
	drug should be urgently provided to deal with an unanticipated and critical 
	development in a patient's condition.9
	II.2.4    Under the terms of the Carter ruling and the 
	draft policy, it is possible that a responsible physician might agree to 
	provide euthanasia or assisted suicide on a given date and time, to 
	accommodate (for example) the desire of geographically distant family 
	members to be present at the patient's death.  Given the number of Nova 
	Scotians working outside the province, this is likely to occur at some 
	point. Between the time that decision 
	is made and the appointed time, however, a sudden deterioration of the 
	patient's condition may cause the patient to ask for immediate relief from 
	pain or suffering by euthanasia or assisted suicide.
	II.2.5    No problem will arise if the responsible 
	physician is immediately available to fulfil the request. However, there is 
	likely to be a problem if the responsible physician is absent or 
	unavailable, and other physicians willing to kill the patient or assist in 
	suicide cannot be conveniently found. This situation is more likely to arise 
	if the originally appointed time for euthanasia/assisted suicide is some 
	days later than the decision to provide the procedure. 
	II.3    Project recommendations
	II.3.1    Physicians should not undertake to provide 
	assisted suicide unless they are also willing to provide euthanasia. 
	II.3.2    In all cases, the responsible physician should, 
	as part of the informed consent discussion preliminary to decision making, 
	advise the patient of the possibility that the drugs might not cause death 
	and discuss the options available.
	II.3.3    Immediately prior to administering or providing 
	the lethal medication, the responsible physician should obtain written 
	direction from the patient as to what action should be taken if the 
	prescribed or administered drugs fail to cause death. (NB. In the case of 
	patients incapacitated by failed euthanasia/assisted suicide, it is not 
	known if this would be legally sufficient to invoke the exemption from 
	prosecution provided by Carter.)
	II.3.4    The responsible physician should personally 
	administer the lethal drug or be personally present when it is ingested, and 
	remain with the patient until death ensues.
	II.3.5    A responsible physician who has agreed to 
	provide euthanasia or assisted suicide must be continuously available to do 
	so from the time the agreement is made to the time that the procedure is 
	performed, unless the patient withdraws the request.
	II.3.6    A responsible physician who has agreed to 
	provide euthanasia or assisted suicide must also arrange for a second 
	responsible physician to provide the procedure in the event that he is 
	unable to be continuously present or is unable to act.
	II.3.7    The second responsible physician must be 
	continuously available to act in the place of the primary responsible 
	physician.
	
	III.    SPPAD and criminal law
	III.1    The draft standard states:
	The effect of the Carter decision is that 
	after February 6, 2016, it will be a legal for a physician to assist an 
	adult patient to die if specified criteria have been met. (Introduction, 
	para. 1)
	III.2    While this statement is accurate as far as it 
	goes, it fails to correctly assess the legal effect of Carter v. Canada 
	with respect to the law on homicide, suicide, parties to offences, 
	counselling offences and conspiracy and to acknowledge that counselling 
	(recommending) suicide remains a criminal offence.
	III.3    The implications of the continuing offence of 
	counselling suicide will be discussed in relation to SPPAD's expectation 
	that objecting physicians must provide patients with advice on "all 
	options," though the point has broader application.
	III.4    Carter did not entirely strike down murder and 
	assisted suicide laws, and it left the law against counselling suicide 
	intact. Physicians can be charged for murder, manslaughter, or administering 
	a noxious substance if they fail to follow the Carter guidelines (Appendix 
	A2.6); if they 
	recommend suicide to patients they can be charged for counselling suicide (Appendix 
	A2.5). 
	Moreover, Carter did not touch laws on parties to offences, counselling 
	offences and conspiracy, which apply to effective 
	referral. (Appendix A2.7) 
	III.5    In view of this, the College has no basis to 
	proceed against any physician who, having the opinion that a patient does 
	not fit one of the criteria specified by Carter, refuses to do 
	anything that would entail complicity in homicide or suicide, including 
	effective referral. College policies and expectations are of no force and 
	effect to the extent that they are inconsistent with criminal prohibitions.
	
	IV.    Remarks of the Registrar
	IV.1    The Registrar before the Special Joint Committee 
	on Physician Assisted Dying
	IV.1.1    In his appearance before the Special Joint 
	Committee on Physician Assisted Dying, on 2 February, 2016, Registrar Dr. 
	Douglas 
	Grant made the following remarks:
	
	The next question is perhaps the most contentious, and that is what are 
	the responsibilities of professionals or physicians conflicted by conscience, and by whom 
	should these responsibilities be mandated. We have a history to confront. I 
	refer to our country's experience with abortion and access to contraception 
	where conscientiously objecting physicians faced and continue to face the 
	same question. On many occasions, whether through silence or obfuscation, 
	physicians chose and continue to choose not to assist women to access  
	a legal and medical service that runs counter to their personal beliefs. I 
	respectfully disagree with the submission to this committee of Dr. Jeffrey Blackmer of the CMA. As a regulator, I submit it is naive to think that access to 
	physician assisted death will not be an issue whether for reasons of 
	conscience or geography. (Emphasis added)
	The provincial colleges are not in unanimous agreement on the question of 
	conscience and whereas it's unfortunate that there is not a unified pan-Canadian 
	approach, this alone should not invite federal legislation. The professional 
	and ethical obligations of a physician in this difficult situation are 
	clearly within the objects of provincial legislation. The colleges, through 
	FMRAC, should work toward consistency, both to establish the physician's 
	obligations and to establish the disciplinary consequences that might 
	flow from a breach of those obligations.10
	IV.2    The Registrar, the Conscience Research Group, and 
	"effective referral"
	IV.2.1    These comments are consistent with the agenda of 
	the Conscience Research Group (CRG). The Group includes euthanasia/assisted 
	suicide and abortion activists who are determined to force physicians who 
	are unwilling to provide abortions, kill patients or help them commit 
	suicide to find a colleague willing to do so. Having failed to convince the 
	Canadian Medical Association to adopt such a policy, they decided to 
	convince provincial regulatory authorities to impose it. (Appendix 
	"B")
	IV.2.2    Dr. Grant became involved with the Conscience 
	Research Group in 2013, when he participated in a meeting called to discuss 
	a policy intended to suppress physician freedom of conscience and religion.  
	Representatives from Colleges of Physicians and Surgeons in Saskatchewan, 
	Ontario and Quebec also attended (Appendix 
	BIV.).  
	IV.2.3    The Collège des Médecins du Québec was, at that 
	time, the only regulator that required objecting physicians to refer 
	patients for morally contested procedures.  The Ontario College 
	subsequently adopted the CRG inspired policy of "effective referral" for 
	morally contested procedures other than euthanasia and assisted suicide, 
	which almost immediately resulted in a constitutional challenge.11  
	Predictably, it recently extended the policy of "effective referral" to 
	euthanasia and assisted suicide.12  Saskatchewan attempted but failed to 
	impose a virtual clone of the CRG policy.13  The policy ultimately 
	adopted there may yet lead to a lawsuit against the Saskatchewan College.14
	IV.3    The Registrar's intentions
	 IV.3.1    It is clear from the history of the Conscience Research group 
	and from the Registrar's statement to the Special Joint Committee that 
	persistent lobbying to force objecting physicians to facilitate abortion and 
	contraception by referral have been an ongoing dress rehearsal for the power 
	play now being acted out.
	IV.3.2    The Registrar's remarks about the lack of unanimity 
	among Colleges of Physicians indicate that he will continue to try to impose 
	the repressive policy of the Conscience Research Group.  This will have 
	practical consequences in Nova Scotia.
	IV.3.3    When appearing before the Special Joint 
	Committee, Dr. Jeff Blackmer of the Canadian Medical Association said that 
	he was already hearing from physicians planning to move from one province to 
	another in order to be able to practise in accordance with their 
	convictions.15  This suggests that physicians will leave Nova Scotia if 
	Dr. Grant is ultimately successful in imposing his views.  
	IV.3.4  The Registrar appears to recognize this. 
	The development of the "unified pan-Canadian approach" he advocates is 
	clearly intended to impose a repressive regime across the country, so that 
	objecting physicians unwilling to conform will have to leave medical 
	practice or leave the country, and only those willing to do what they 
	believe to be gravely wrong will be able to become physicians anywhere in 
	Canada.
	IV.4    The Registrar's complaint
	IV.4.1    This is apparent from the Registrar's complaint 
	to the committee.  He did not complain that objecting physicians were 
	actually obstructing patients or preventing them from obtaining morally 
	contested services, nor did he offer any evidence to that effect (which, as 
	Registrar, he could have produced, if it existed).  Instead, he 
	complained that objecting physicians "chose and continue to choose not to
	assist" patients.  
	IV.4.2    The reason for this is that objecting physicians 
	are concerned to maintain their own personal and professional integrity.  
	They cannot control the choices their patients make, nor prevent patients from 
	acting upon those choices, but they may refuse to help patients do what they 
	believe to be wrong.  For example, they may refuse to help find someone 
	willing to kill a patient or assist with suicide.
	IV.4.3    In contrast, the Registrar intends to actively 
	prevent objecting physicians from making or acting upon what he considers to 
	be unacceptable choices.  Those fond of labels might say that he is not 
	"pro-choice," or that he is an "anti-choice."  In any case, by his own 
	account, he is less respectful of the freedom of objecting physicians than 
	they are of the freedom of their patients.
	IV.5       An ethic of 
	servitude, not service
	IV.5.1    The Registrar asks what responsiblities 
	physicians have when they ecounter conflicts of conscience.  His answer 
	is implied in his presentation to the Committee and by his collaboration 
	with the Conscience Research Group.  He expects them to do what they 
	are told  to do by the patient, or by the College, or by the state.  
	He expects them to 'follow orders', as it were, even if they believe doing 
	so is wrong - even gravely wrong - even if it means arranging for someone to 
	be killed.
	IV.5.2    The Registrar has accepted the argument of the 
	Conscience Research Group that physicians have an ethical obligation to do 
	what they believe to be unethical; that the essence of "professionalism" is 
	a willingness to do what one believes to be wrong.  This is  
	incoherent.  Moreover, his reference to "disciplinary consequences" 
	makes clear his intention to punish those who refuse to do what they believe 
	to be wrong, including those who refuse to be parties to homicide and 
	suicide.  This is dangerous.
	IV.5.3    The best traditions of the practice of medicine, 
	like the best traditions of liberal democracy, are associated with an ethic 
	of service.  The Registrar and the Conscience Research Group propose to 
	replace this with an ethic of servitude.  This is unacceptable.
	V.    Conclusion
	V.1    The Project considers SPPAD satisfactory with 
	respect to the accommodation of physician freedom of conscience and respect 
	for the moral integrity of physicians. However, it should include reference 
	to continuing effects of criminal law, and it would be prudent to address 
	failed assisted suicide/euthanasia attempts and urgent situations.
	V.2    The fundamental freedoms of physicians in Nova 
	Scotia will remain at risk as long as the College Registrar and others 
	persist in the attitude and intentions demonstrated in his presentation to 
	the Special Joint Committee on Physician Assisted Dying. 
	
	Notes
	1.  Canadian Medical Association,
	Submission to the 
	College of Physicians and Surgeons of Ontario - Consultation on CPSO Interim 
	Guidance on Physician-Assisted Death (13 January, 2016) (Accessed 
	2016-02-02).
	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, 2000
	3.  Moore E.
	
	"Doctor is hoping feds will guide on assisted suicide legislation." 
	Edson Leader, 12 February, 2015. (Accessed 2015-07-16).
		4.  Rich, P.  
		"Physician  perspective on end-of-life issues fully aired." Canadian 
		Medical Association, 19 August, 2014 (Accessed 2015-06-22).
	5.  Ubelacker S.
	
	"Medical professionals try to answer burning questions on doctor-assisted 
	death." Associated Press, 13 February, 2015 (Accessed 
	2015-07-04).
	6.  Kirkey S.
	
	"How far should a doctor go? MDs say they 'need clarity’ on Supreme Court’s 
	assisted suicide ruling."  National Post, 23 February, 2015 
	(Accessed 2015-07-04).
		7.  Consultations & hearings on Quebec Bill 
		52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon 
		Lambert.Tuesday 17 September 2013 - Vol. 43 no. 34 (Hereinafter 
		"Consulations")
		T#49,
		
		T#58.
		8.  Consultations,
	T#33.
	9.  Consultations,
	
	T#76,
	
	T#87,
	
	T#88. 
	10.  Special Joint Committee on Physician 
	Assisted Dying (PDAM), Meeting No. 10 (2 February, 2016).
	Webcast: Dr. Douglas Grant (19:30:08 to 19:31:50) (Accessed 2016-02-05) 
	
	11.  Ontario Superior Court of Justice, Between the 
	Christian Medical and Dental Society of Canada et al and College of 
	Physicians and Surgeons of Ontario,
	Notice of 
	Application, 20 March, 2015. Court File 15-63717.
	
	12.  College of Physicians and Surgeons of Ontario,
	
	
	Interim Guidance on Physician Assisted Death (January, 2016) 
	(Accessed 2016-02-05)
	
	13.  Protection of Conscience Project,
	
	Submission to the College of Physicians and 
	Surgeons of Saskatchewan
	Re:  Conscientious Refusal (5 March, 
	2015)
	
	14.  Christian Medical and Dental Society,
	"Sask MDs, doctors' groups critical of CPSS decision." 
	 News 
	Release, 19 June, 2015 (Accessed 2016-02-05)
	
	15.  Dr. Blackmer:  I have phone calls every day 
	from people saying, "I live in this province. I think I'm going to 
	move to this province because I like their rules better and they coincide 
	better with my own moral views."  Special Joint Committee on Physician 
	Assisted Dying,
	
	Evidence, Wednesday, 27 January, 2016.  (Accessed 2016-02-05)
							
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