Category: Canada

Apparently it’s OK to violate doctors’ Charter rights

National Post
Reproduced with permission

Raymond J. de Souza

What happens to fundamental rights when a free and democratic society ceases to be one? That’s the question raised by a decision of the Ontario Superior Court last week.

The court was petitioned by doctors who want nothing to do with “medical assistance in dying,” namely they do not want to use their expertise and professional status to procure the death of their patients. The College of Physicians and Surgeons of Ontario (CPSO) has a policy that requires physicians who do not want to administer lethal treatment to their patients to arrange for their patients to see someone who will. It’s called an “effective referral.” Doctors are therefore mandated to “effect” something that they object to.

Consider a patient who, after a bit of intensive internet research, asks his doctor for a particular drug or course of therapy. The doctor refuses. In her professional judgment the treatment is not in the best interests of the patient. The patient then asks the doctor to arrange for that same treatment from another physician, to “effect” that treatment despite her judgment that it is not appropriate.

The doctor would likely remind the patient that he is free to seek a second opinion, or even seek out another doctor altogether. But the patient’s wish does not override her professional opinion; the doctor is not a waiter taking an order.

What if the patient instead asks to be killed? Then, according to the CPSO, the doctor becomes a service provider, not a professional with a different judgment, much less a citizen with conscientious objections. A doctor can refuse to prescribe the latest weight-loss drug, but must “effect” a lethal injection.

The court, in a unanimous decision, found that the CPSO policy violates doctors’ charter right to religious freedom. (It did not rule on freedom of conscience, but presumably the same would apply.) It further found that the infringement was neither “trivial” or “insubstantial.”

So the court found a serious infringement of a fundamental freedom guaranteed by the charter, and yet upheld the “effective referral” policy, finding that it was a “reasonable limit on religious freedom, demonstrably justified in a free and democratic society.”

Reasonable to whom? Not to the physician who finds abortion abhorrent, and now must to some degree facilitate it. Not to the doctor who wants her infirm patients to know that she would never hasten their deaths, but now is required to co-operate in just that.

The charter permits infringements on rights that are “demonstrably justified in a free and democratic society.” But what happens when society is no longer keen on certain freedoms or certain democratic rights? Or at least when the judges hearing the case think fundamental freedoms not quite so fundamental after all?

The Ontario judges simply decided that they did not think (in this case) that the right to religious freedom was that important. How do we know that? Because the judges accepted that there is “no evidence that conscientious objection results in a failure of access.” So even though a religious or conscientious objection does not impede what a particular policy is attempting to provide, it still can be infringed upon.

Indeed, what makes the Ontario decision all the harder to fathom is that in other provinces there is no equivalent of the CPSO “effective referral” policy. In the internet age, it is not hard for willing doctors to make themselves known. In some provinces the government itself keeps a registry that patients can access. There is no need — as currently demonstrated in other parts of Canada — to force doctors to effect that to which they object.

The only logic that holds the Ontario decision together is that freedom of religion and freedom of conscience are relatively unimportant in a “free and democratic society.” Indeed, the CPSO decision sets the bar of “reasonable limits” so low that it is hard to imagine what would constitute an unreasonable limit.

The answer to that of course is clear, though left unstated. An unreasonable limit is one the judges don’t like. A reasonable one is one that they do.

A palliative-care physician in Ontario who does not wish to participate in assisted suicide now has very good reason to move to Alberta, where she will not be required to effect it. How that helps patients in Ontario is not clear.

It is all quite unreasonable. At least it would be in a free and democratic society.

 

Delta hospice rebels against Fraser Health’s mandate to provide medical assistance in dying

Vancouver Sun

Pamela Fayerman

The operators of the Delta Hospice Society say they’re victims of “bullying” tactics by Fraser Health and medical assistance in dying (MAiD) activists who want the service provided in all non-denominational, hospice palliative care programs.

“Hospice palliative care is not about hastening death and we object to the bullying currently taking place in B.C.,” said Janice Strukoff, an administrative leader for the charitable, non-profit society that has a contract with the health region to provide 10 palliative care beds for the region. It derives just under half its income from the health authority; the other half comes from private donations.

“Hospice palliative care settings are designed for symptom management, the provision of comfort, and care for a natural death which is neither hastened nor prolonged,” she said, adding that providing MAiD in such settings would stoke fear and anxiety on the part of already vulnerable patients who aren’t necessarily ready to die.” . . . [Full Text]

Canadian court rules that state can compel participation in homicide and suicide

News Release

For immediate release

Protection of Conscience Project

Three judges of the Ontario Superior Court of Justice Divisional Court have unanimously ruled that, notwithstanding religious convictions to the contrary, Ontario  physicians can be forced to help patients access any and all services and procedures, including euthanasia and assisted suicide.

“In the end,” observed Project Administrator Sean Murphy,  “the ruling effectively gives the state the power to compel citizens to be parties to homicide and suicide, even if they believe it is wrong to kill people or help them kill themselves.”

The Protection of Conscience Project jointly intervened in the case with the Catholic Civil Rights League and Faith and Freedom Alliance on the issue of freedom of conscience.  The court acknowledged the submission, but explicitly limited its ruling to the exercise of freedom of religion.  It did not address freedom of conscience.

The court approved the reasoning of the College of Physicians and Surgeons of Ontario, the state medical regulator.  The College argued that “physicians must be prepared to take positive steps to facilitate patient access” to euthanasia and assisted suicide, and that there is “no qualitative difference” between euthanasia and “other health services.”

With respect to options of objecting physicians, the court observed that they are free to change their field of practice in order to avoid moral conflicts.  The judges added that those who fail to do so are to blame for any psychological distress they might experience if compelled to violate their convictions.  It appears that they were unconcerned that this might further reduce the number of family and palliative care physicians, noting that there was “no evidence” that coercive policies would adversely affect physicians “in any meaningful numbers.”

Dr. Shimon Glick, advisor to the Project and Professor Emeritus of the Faculty of Health Sciences at Ben Gurion University of the Negev in Israel, described the ruling as “sad.”  Commenting on the decision, Project Advisor Professor Roger Trigg of Oxford said, “once the perceived interests of the State override the moral conscience of individuals  – and indeed of professionals- particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.”

“Even the first steps- that may not seem important to some,” he warned, “are taking us in that direction.”

Professor Trigg’s warning was echoed by Professor Abdulaziz Sachedina, a leading Islamic scholar and philosopher who also serves on the Project Advisory Board.  Professor Sachedina asked, “Are we  going to submit to “totalitarian ethics” reflected in such court decisions, making suicide a tempting option without any regard to conscientious objection?”

The decision concluded legal proceedings launched jointly by five Ontario physicians, the Christian Medical and Dental Society of Canada, Canadian Physicians for Life, and the Canadian Federation of Catholic Physicians’ Societies.  They are considering the possibility of appeal.

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
E-mail: protection@consciencelaws.org

The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity. 

 

 

Canadian court tells doctors they must refer for euthanasia

Will they be hounded out of their profession?

Mercatornet

Michael Cook

For years bioethicists of a utilitarian cast have argued that conscientious objection has no place in medicine. Now Canadian courts are beginning to put their stamp of approval on the extinction of doctors’ right to refuse to kill their patients.

The Superior Court of Justice Division Court of Ontario ruled this week that if doctors are unwilling to perform legal actions, they should find another job.

A group of five doctors and three professional organizations were contesting a policy issued by Ontario’s medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), arguing it infringed their right to freedom of religion and conscience under Canada’s Charter of Rights and Freedoms.

However, Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel:

“the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.

“Those who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.”

At issue is the policy of “effective referral”. A doctor who objects to participating in euthanasia cannot be forced to do it. But he is expected to pass the patient to another doctor who will. The CPSO argues that effective referral is necessary “to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.”

Without the policy of effective referral, equitable access would be “compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services,” Justice Herman Wilton-Siegel wrote. People in remote communities might request euthanasia. If their doctor refused, they might suffer needlessly and taxpayers would have to foot the bill to subsidise the refusnik’s conscience.

It is remarkable how closely Justice Wilton-Siegel’s text hews to the arguments of bioethicists who have been chipping away at the right to conscientious objection for years.

In 2005 American legal scholar Alta Charo described conscientious objection as “an unfettered  right to personal autonomy while holding monopolistic control over a public good … an abuse of the public trust—all  the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest’.

In 2006 Oxford’s Julian Savulescu argued in the BMJ that “when conscientious objection compromises the quality, efficiency, or equitable delivery of a service, it should not be tolerated”.

More recently, Canadian bioethicist Udo Schuklenk and a colleague contended in the BMJ that

“If at any given time a doctor is unable to continue practicing due to their—ultimately arbitrary—conscience views, nothing would stop them from leaving the profession and taking up a different vocation. This happens across industries and professions very frequently. Professionals can be expected to take responsibility for the voluntary choices they make.”

Responding to the ruling, Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said: “We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.”

The case is sure to be appealed, but if the doctors championing conscientious objection fail, the consequences will be dire.

Throughout Canada, doctors would be required to refer for euthanasia. If they refuse, they will be hounded out of their profession, or, at best, shunted into specialties where the question will not arise, like pathology or dermatology.

This ruling shows how quickly tolerance vanishes after euthanasia has been legalised. In the Carter decision which legalised it, Canada’s Supreme Court explicitly stated that legalizing euthanasia did not entail a duty on the part of physicians to provide it. Now, however, 18 months and more than a thousand death after legalisation, conscientious objection is at risk.

It also shows how vulnerable religious-based arguments can be. The plaintiffs contended that referring patients violated their right to religious freedom. While this is true, is this the main ground for conscientious objection? As several doctors pointed out in the Canadian Medical Association Journal last year, “Insofar as all refusals of therapy are ultimately justified by the ethical belief that the goal of therapy is to provide benefit and avoid harm, all treatment refusals are matters of conscience.”

This article is published by Michael Cook and MercatorNet under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to MercatorNet. Commercial media must contact MercatorNet for permission and fees.

Nova Scotia launches toll-free phone line for women considering an abortion

CTV News Atlantic

The Canadian Press

HALIFAX — Women considering an abortion in Nova Scotia will soon be able to call a toll-free number to access information, arrange testing and set up an appointment.

The phone line will eliminate the need for a doctor’s referral to obtain the time-sensitive procedure.

The Nova Scotia Health Authority says the phone line will be staffed by a clerk or nurse from 8 a.m. to 4 p.m., Monday to Friday. Outside of those hours, callers can leave a voicemail and receive a follow-up phone call. . . [Full text]