Category: Protection of Conscience Project

Protection of Conscience Project Bimonthly Update

By Region/Country

Australia

A physician in Melbourne, Australia, has openly defied the State of Victoria law that requires physicians who object to abortion to refer patients to colleagues who will provide the service.  Dr. Mark Hobart refused to refer a couple who wanted to abort a girl because they wanted a boy. [Newstalk]

Canada

The government of Quebec has introduced a bill to legalize euthanasia in the province, despite the continuing criminal prohibition of the procedure.  An Act respecting end-of-life care (Bill 52) is intended to permit physicians, in defined circumstances, to kill their patients as part of the redefined practice of medicine (“medical aid in dying”; MAD). However, the procedure cannot become part of medical practice in Quebec unless the medical profession itself (broadly speaking) formally accepts it and delivers it through the structures and powers established for the delivery of health care. If Bill 52 passes, health care providers and others who want no part of euthanasia will find their working environments increasingly controlled by a MAD matrix functioning within this system.  Moreover, having formally approved of euthanasia, the medical establishment will be at particular pains to defend and enforce the decision. In the end, freedom of conscience for Quebec health care workers who object to euthanasia may come to mean nothing more than the freedom to find another job, or the freedom to leave the province. [See Redefining the practice of medicine: Winks and nods and euthanasia in Quebec]

European Union

The Observatory on Intolerance and Discrimination against Christians released a report describing 41 examples of national laws with adverse effects on Christians in more than 15 European Countries. Additionally, 169 cases of intolerance against Christians in the EU – area in 2012 are portrayed.  The Holy See has denounced European discrimination against and intolerance of Christians.

Ireland

The Protection of Life During Pregnancy Act 2013 will permit abortions when there is a “real and substantial risk” to the life of a woman by reason of physical illness or suicidal ideation. The Act  includes a protection of conscience provision that is limited to medical practitioners, midwives and nurses.  A provision that denied freedom of conscience to institutions has been dropped.  However, no conscientious objection will be allowed in emergencies when the mother’s life is in immediate danger.

It is far from certain how much difficulty the mandatory referral requirement will cause, since the Act envisions abortion only in circumstances involving a substantial risk to the mother’s life.  This is very rare, and in such circumstances there is much less likelihood of conscientious objection, so the provision may not prove to be troublesome in practice.

On the other hand, government comments accompanying the earlier “heads of bill” noted that medical practitioners do not need to be of the opinion that the risk to the woman’s life “is inevitable or immediate.” The more broadly this interpretation is construed, the more likely it is that conflicts of conscience will occur, and the greater will be the surrounding controversy.  Irish physicians speaking to an early draft of the legislation expressed differences of opinion about grounds for abortion.

Italy

Large numbers of Italian obstetricians are reported to be refusing to provide abortion for reasons of conscience – up to 80% of practitioners in some areas. Critics are demanding that steps be taken to ensure “access to abortion,” which may generate pressure to suppress freedom of conscience. [RTE; Morning Ireland]

Netherlands

Only 400 of 20,000 Flemish physicians are trained to provide euthanasia.  It appears that most physicians do not want to be directly involved with it.  In consequence, the 400 are called upon frequently to provide the required second opinion and sometimes the lethal injection.  Confirming the reluctance of physicians to participate in the procedure, Dr. Sarah Van Laer complains that “there are too few doctors ready to perform euthanasia” and that this is a”badly underestimated problem.” [Bioedge]

Philippines

In order to simplify and expedite the hearing scheduled for 9 July to review the controversial Reproductive Health law, the Supreme Court of the Philippines has proposed that the petitioners for and against the bill concentrate on three constitutional themes during their oral submissions:

  • proscription of involuntary servitude
  • equal protection clause (right to life, freedom of religion, natural law)
  • freedom of speech (academic freedom)

The suggestion by the court to include the proscription of involuntary servitude as one of the constitutional themes could be interpreted two ways and could include arguments of two kinds. The first is a claim that compelling someone to do something contrary to his conscientious convictions is a form of involuntary servitude. The second is a claim that a pregnancy that results from difficulty accessing contraception and/or abortion is a form of involuntary servitude.  In either case, the reference to the constitutional proscription of involuntary servitude is of particular interest because of a similar proscription in the 13th Amendment to the Constitution of the United States.

United Kingdom

The Family Planning Association has encouraged women to leave a medical practice in south London after anonymous complaints were reported in the media that some physicians in the clinic are unwilling to prescribe the morning-after pill for reasons of conscience. [The Independent]

The National Health Service of Greater Glasgow and Clyde, regional provider of state health care, will attempt to overturn an appeal court ruling favourable to freedom of conscience for health care workers by appealing to Britain’s Supreme Court.  Two midwives who, for reasons of conscience, refused to participate in the supervision and support of staff providing abortions successfully appealed a lower court ruling against them.  The judgement of the appeal court was given in April.  [Irish Post]

A bill introduced in the House of Lords by Lord Falconer proposes to legalize assisted suicide.  It includes a protection of conscience provision to protect those who do not wish to participate  in the procedure.  Participation is the central issue in the midwives case noted above.

United States

The Department of Health and Human Services has confirmed a regulation that will require businesses with over 50 employees to provide health insurance for birth control and surgical sterilization, even if they object to doing so for reasons of conscience.  The regulations includes exemptions for objecting “religious employers” (largely limited to houses of worship) and objecting religious non-profit organizations.  Nonetheless, the continued demand that objecting business owners be forced to comply and the nature of the exemptions remain unacceptable to many religious organizations.  Catholic and Baptist leaders have collaborated in writing a letter of protest to Congress.  American Catholic bishops have been adamant that the HHS regulation is unacceptable. There are now 61 civil suits filed against the regulation, with over 200 plaintiffs. [Becket Fund, HHS Information Central]. The Archdiocese of New York is among the plaintiffs in the lawsuits.  However, the Archdiocese  has, for years, been indirectly paying for health insurance for employees of the Catholic Health Care System that includes coverage for contraception and abortion. [New York Times]

A North Carolina bill that proposes to modify laws pertaining to abortion health insurance coverage includes a protection of conscience provision for health care workers and health care institutions.  In Vermont, a new assisted suicide law allows for protection of conscience for health care workers and somewhat more limited protection for health care  facilities.

 Recent Postings

Personal Opinions and Ideology, Not “Science”.  From Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism, by Robert P. George

A “medical misadventure” in Ireland: Deaths of Savita & Prasa Halappanavar.  University Hospital, Galway, Ireland (21-28 October, 2012)

Protection of Life During Pregnancy Act 2013 (Ireland) (Extracts pertaining to freedom of conscience)

Draft Irish Abortion Law: Protection of Conscience- Testimony before the Joint Committee on Health and Children Houses of the Oireachtas (Tithe an Oireachtais) Dublin, Ireland 17-21 May, 2013

Draft Heads of Bill for Irish abortion law: Protection of Life During Pregnancy Bill 2013 (Extracts pertaining to freedom of conscience)

What Role does Conscience play in Medical Ethics? Presentation to the Association of Catholic Doctors, Dublin, 27 September, 2008.

Redefining the practice of medicine: Winks and nods and euthanasia in Quebec.  Commentary on Bill 52: An Act respecting end-of-life care (June, 2013)

U.S. Senate, Bill S1204 (2013) Health Care Conscience Rights Act

North Carolina, USA: House Bill 730 (2013) Insurance & Health Care Conscience Protection

Vermont, USA: Protection of conscience provision in assisted suicide statute

United Kingdom: Assisted Dying Bill (HL Bill 24) (protection of conscience provision)

 Publications of Interest

O’Rourke A, De Crespigny L, Pyman A. Abortion and Conscientious Objection: The New Battleground.  Abstract:  This paper examines the vexed issue of conscientious objection and abortion. . .We argue that the unregulated use of conscientious objection impedes women’s rights to access safe lawful medical procedures. As such, we contend that a physician’s withdrawal from patient care on the basis of conscience must be limited to certain circumstances. . .the ‘obligation to refer’ in ALRA is consistent with international practice and laws in other jurisdictions. . .

Observatory on Intolerance and Discrimination Against Christians in Europe: Legal Restrictions Affecting Christians / Report 2012

Murphy S, Genuis SJ, “Freedom of Conscience in Health Care: Distinctions and Limits.”  Journal of Bioethical Enquiry, June, 2013

Fernandez-Lynch H, “Discrimination at the doctor’s office.”  N Engl J Med 2013; 368:1668-1670 May 2, 2013DOI: 10.1056/NEJMp1211375

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Redefining the practice of medicine – Part 3

Winks and nods and euthanasia in Quebec

Re:  Bill 52: An Act respecting end-of-life care (June, 2013)

Sean Murphy*

Part 3: Working in the MAD matrix

Abstract

“Medical aid in dying” in Bill 52 (An Act respecting end-of-life care) will be transformed into euthanasia using the structures and powers established by other Quebec statutes governing the delivery of health care. These laws have established a multi-layered and overlapping bureaucracy. If Bill 52 passes, health care providers and others who want no part of euthanasia will find their working environments increasingly controlled by a MAD matrix functioning within this system.

The Minister for Social Services and Youth Protection may issue “policy directions” about euthanasia. Health care in every region in Quebec is delivered under the direction of a regional health and social service agency. In addition, local health and social services networks have been established. These will be expected to provide or facilitate euthanasia.

Almost all local community service centres, hospital centres or residential and long-term care centres will be required to offer euthanasia, as will rehabilitation centres, which serve developmentally disabled patients. Palliative care hospices and hospitals are not required to do so. Physicians associated with private health care facilities must not provide euthanasia unless authorized by a local health authority.

Policies, standards, codes of ethics, protocols, guidelines, directives, etc. can be used to normalize euthanasia, and disciplinary and complaints procedures can be used to force participation in it. Local complaints commissioners, the Health and Social Services Ombudsman and syndics (investigators) for professional orders could create considerable difficulty for objecting physicians.

Under Quebec’s Professional Code, the Physicians’ Alliance for Total Refusal of Euthanasia, the Euthanasia Prevention Coalition and other groups that oppose euthanasia might face substantial fines if they persist in encouraging or advising physicians not to participate in the procedure.

Physicians may refuse to provide euthanasia if the patient is legally ineligible, and for other reasons, including conscientious objection. Section 30 of the bill should be amended to avoid unnecessary conflict with objecting physicians. Section 44, the provision specific to conscientious objection, is inadequate. Further, patients may lodge complaints against physicians who refuse to provide or facilitate euthanasia with institutions and the regulatory authority, regardless of the reasons for refusal.

Despite the promise of immunity, some Quebec physicians may be unwilling to provide euthanasia while the criminal law stands, even if they do not object to the procedure. Similar reluctance might arise in regional health agencies, councils of physicians or other entities responsible for issuing MAD guidelines. Some might deliberately and obstinately interpret “medical aid in dying” to exclude killing patients, on the ground that the Act does not explicitly require or permit euthanasia, and the criminal law precludes such an interpretation.

Finally, objecting physicians might be able to appeal to the Public Protector, who is empowered to intervene “whenever he has reasonable cause to believe that a person or group of persons has suffered or may very likely suffer prejudice as the result of an act or omission of a public body.” [Full commentary]

Redefining the practice of medicine – Part 2

Winks and nods and euthanasia in Quebec

Re:  Bill 52: An Act respecting end-of-life care (June, 2013)

Sean Murphy*

Part 1: Bill 52 in detail

Abstract

An Act respecting end-of-life care (Bill 52) purports to establish a right to euthanasia for a certain class of patients by including it under the umbrella of “end-of-life care.” Those seeking euthanasia may not be near the end of their lives and may not be terminally ill, but they are apparently classed as “end-of-life patients” because they have chosen to end their lives.

Section 25 introduces a term not used by the medical profession, “terminal palliative sedation” (TPS). By this the Quebec government means an irreversible procedure intended to kill the patient slowly. Any patient is eligible for TPS, and a proxy can consent to it on behalf of an incompetent patient.

Section 26 permits patients to be killed quickly by “medical aid in dying”(MAD) if they are competent adult Quebec residents suffering from an incurable serious illness, in an advanced state of irreversible decline and suffering from constant and unbearable physical or psychological pain. The patient need not be terminally ill and is free to refuse effective palliative treatments.

A qualifying patient must personally make a written request for MAD “in a free and informed manner.” It must be signed in the presence of professional, who must also sign the request. The attending physician must confirm the eligibility of the patient and the free and informed nature of the request. He must verify the persistence of suffering and a continuing desire for euthanasia, speak to other members of the health care team and see that the patient is able to discuss the decision with others. However, the physician cannot advise family members unless the patient so wishes. Thus a physician may kill a patient without the knowledge of the family. Finally, the attending physician must obtain a written opinion of an independent physician confirming eligibility for euthanasia.

Only physicians may provide euthanasia (MAD), and, having done so, must “take care” of a patient until he dies. Physicians who provide TPS or MAD must report the fact to institutional authorities. They must report all euthanasia cases to the Commission on End-of-Life Care.

The Act appears to assume that the regulators will establish “clinical standards” for euthanasia but does not assign them a central role, making institutional authorities primarily responsible for it.

Canadian criminal law is not affected by the Act. It continues to apply to the killing of patients by physicians, but also to any act or omission done for that purpose, including the making and distribution of MAD guidelines and protocols.

First degree murder is defined as murder that is “planned and deliberate.” A physician who does what the Act requires will have provided excellent evidence that the killing was intentional, planned and deliberate. Conforming to the Act respecting end-of-life care would seem to increase the likelihood that a physician – and anyone counselling, aiding, abetting his act – could be charged and convicted for first degree murder, for which the punishment is life imprisonment without parole for 25 years. [Full commentary]

Redefining the practice of medicine – Part 1

Winks and nods and euthanasia in Quebec

Re:  Bill 52: An Act respecting end-of-life care (June, 2013)

Sean Murphy*

Part 1: Overview

Abstract

An Act respecting end-of-life care (Bill 52) is intended to permit physicians, in defined circumstances, to kill their patients as part of the redefined practice of medicine. However, the procedure cannot become part of medical practice in Quebec unless the medical profession itself (broadly speaking) formally accepts it as a form of health care.

The strategy of the Quebec government includes three key elements:

a) A statute that authorizes and allows the regulation of “medical aid in dying” (MAD) but does not define the term, so as to avoid conflict with the criminal law and constitutional challenges to the law;

b) Compliant medical regulators, professionals and health care authorities who are expected to define MAD to include euthanasia, thus establishing it as a legitimate aspect of health care;

c) Refusal to prosecute physicians who kill patients in accordance with MAD guidelines, thus circumventing the criminal prohibition of euthanasia.

While the federal government could, in theory, appoint and pay lawyers to act as prosecutors to enforce the criminal law, this would be especially contentious in Quebec and would involve political and practical problems. If Bill 52 passes, it seems unlikely that Quebec physicians who provide euthanasia under MAD guidelines will be prosecuted. The province formerly refused to enforce Canada’s criminal law on abortion for over twenty years, so a policy of refusing to prosecute physicians providing euthanasia could have similar staying power.

Though Bill 52 does not actually require or authorize the killing of patients, from a practical perspective, the text of the statute is a “mere technicality.” Nonetheless, it is not a mere technicality that the medical establishment and not the statute will have directed that patients can be killed in order to relieve their symptoms.

On the contrary: it is profoundly significant. Having formally approved of euthanasia, the medical establishment (meaning all of those who collaborate in drawing up MAD guidelines and protocols) will be at particular pains to defend and enforce the decision. In the end, freedom of conscience for Quebec health care workers who object to euthanasia may come to mean nothing more than the freedom to find another job, or the freedom to leave the province.  [Full commentary]

A “medical misadventure” in Ireland

Deaths of Savita & Prasa Halappanavar

Galway, Ireland: 21-28 October, 2012

Sean Murphy*

Savita Halappanavar was a 31 year old woman who was 17 weeks pregnant when she presented at the University Hospital, Galway, on 21 October, 2012, with a miscarriage.  She spontaneously delivered a stillborn daughter, Prasa, on the afternoon of 24 October, and died from sepsis early on 28 October.  The circumstances of her death generated a hurricane of controversy in Ireland and around the world about Irish abortion law.  A coroner’s inquest held in Galway in April, 2013 resulted in the classification of Savita’s death as a “medical misadventure.”

What follows is a chronological account of Savita’s care and treatment from 21 to 28 October, drawn from newspaper reports of the evidence taken at the inquest.  [Read more . . .]

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