Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

Submission to the College of Physicians and Surgeons of Nova Scotia

Re: Standard of Practice: Physician Assisted Death

6 February, 2016


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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
I.    Outline of the submission
II.    Avoiding foreseeable conflicts

II.1    Failed assisted suicide and euthanasia
II.2    Urgent situations
II.3    Project recommendations

III.    SPPAD and criminal law
IV.    Remarks of the Registrar

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

V.    Conclusion
Appendix "A"    Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix "B"    Conscience Research Group

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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