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Submission to the College of Physicians and Surgeons of Ontario

Re: Interim Guidance on Physician Assisted Death

Abstract

Virtually all of what is proposed in Interim Guidance on Physician-Assisted Death (IGPAD) is satisfactory, requiring only clarifications to avoid misunderstanding and appropriate warnings concerning the continuing effects of criminal law.

The College has no basis to proceed against physicians who refuse to do anything that would entail complicity in homicide or suicide, including “effective referral,” because they believe that a patient does not fit the criteria specified by Carter. College policies and expectations are of no force and effect to the extent that they are inconsistent with criminal prohibitions.

Proposals about respect for patients, access to services, and providing information are acceptable, subject to some clarifications and limitations with respect to offering the option of suicide. Simple and uncontroversial recommendations are offered to avoid problems associated with failed assisted suicide and euthanasia attempts, and in urgent situations.

However, the requirement for “effective referral “is completely unacceptable. It is ludicrous to assert that the reasoning that underpins the law on criminal complicity and culpability, civil liability and the College policy that prohibits referral for Female Genital Cutting can be dismissed as legally irrelevant to the exercise and protection of fundamental freedoms of conscience and religion.

The College cannot justify a demand for “effective referral” on the grounds that it cannot be understood to involve morally significant complicity in killing patients or helping them to commit suicide, nor can it be justified as a reasonable limitation on fundamental freedom.
The only apparent basis for the College’s demand for effective referral is that it has decided what the Supreme Court of Canada did not decide: that euthanasia and assisted suicide in circumstances defined by Carter are morally/ethically acceptable. College officials seem to consider the College justified in using force – the force of law – to compel dissenting physicians to conform to their moral/ethical views.

This is not a reasonable limitation of freedom but a reprehensible attack on them. It is a paradigmatic example of the authoritarian suppression of freedom of conscience and religion and a serious violation of human dignity. Examples of alternative acceptable policies demonstrate that access to assisted suicide and euthanasia can be ensured without suppressing freedom of conscience and religion.

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. IGPAD and criminal law

IV. IGPAD on respect, access, notification and providing information

IV.1    Treat patients respectfully; do not impede access
IV.2    Notification of objections
IV.3    Providing information

V. Freedom of conscience

V.1    IGPAD and “effective referral”
V.2    “Effective referral” and criminal law
V.3    Legal vs. ethical/moral evaluation of euthanasia, assisted suicide
V.4    The College position: “error has no rights”

VI. Project response

VI.1    Previous submissions
VI.2    Making freedom easy – or impossible
VII.    Alternative acceptable policies

VIII. 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” Carter in theTrial Court, Part VII: A Judicial Soliloquy on Ethics

B1.    A note of caution
B2.    The questions addressed in Part VII
B3.    Plaintiffs’ claim shapes and limits the analysis
B4.    Ethics: which one?
B5.    Medical ethics
B5.1    Ethics and the willingness of physicians
B5.2    Ethics and the positions of medical associations
B5.3    Ethics and the opinions of ethicists
B5.4    Ethics and current end-of-life practices
B6.    Ethics of society
B6.2    Ethics and public opinion
B6.3    Ethics and public committees
B6.4    Ethics and prosecution policies
B7.    Summary of the ethical debate
B8.    Conclusions about the ethical debate
B8.2    Would Canadian physicians provide the services?
B8.3    Current medical practice with respect to end-of-life care?
B8.4   Does the law attempt to uphold a conception of morality?
B9.    Carter Part VII: in brief
B9.1    Unanswered questions
B9.2    Meaningless findings
B9.3    Inconclusiveness
B9.4    Neglected evidence
B9.5    Deficient review of end-of-life decision-making
B10.    On appeal to the Supreme Court of Canada

Appendix “C” Physician Exercise of Freedom of Conscience and Religion

C1.    Introduction
C2.    Providing information to patients
C3.    Exercising freedom of conscience or religion
C4.    Reminder: treatments in emergencies

Project 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

I. Introduction

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 Appendix “B.”

III. Additional comments on numbered responses

III.1 Role of Physicians (Response 11)

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 patient.

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. . . . [Full Text]

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Objection

Abstract

Conscientious Objection is unacceptable because it attacks the character and competence of objecting physicians, and it nullifies their freedom of conscience by compelling them to arrange for patients to obtain services to which they object.

Council has been given no evidence that anyone in Saskatchewan has ever been unable to access medical services or that the health of anyone in Saskatchewan has ever been adversely affected because a physician has declined to provide or refer for a procedure for reasons of conscience. In the absence of such evidence, the limits proposed in Conscientious Objection are neither reasonable nor demonstrably justified.

Conscientious Objection is not justified by the principles included in the policy because there is no necessary connection between the principles and a policy requiring physicians to do what they believe to be wrong. The principles can be applied to force physicians to facilitate morally contested procedures only if they are ideologically interpreted in order to impose one world view at the expense of others. The Supreme Court of Canada has unanimously affirmed that such an approach is unacceptable.

It is unrealistic to believe that the approach taken in Conscientious Objection will not be taken with respect to physician administered euthanasia and physician assisted suicide. The disclaimer to the contrary is ill-advised and misleading. A policy on Conscientious Objection should be sufficiently flexible to apply to direct or indirect participation in killing patients or helping them commit suicide. If Council is uncertain how this can be done, it should postpone policy development concerning Conscientious Objection until after the Carter decision comes into force in 2016.

Alternatively, if the College believes that some kind of guidance should be provided with respect to this contentious issue, the Project offers an alternative that protects physician freedom of conscience and religion but does not obstruct patient access to services, including euthanasia and assisted suicide.

I. Introduction

II. Overview of this submission

III. Limitation of fundamental freedoms

IV. “Purpose” and “Principles”

V. Scope of Conscientious Objection

V.1 The disclaimer

V.2 Dissecting the disclaimer

V.3 Summary

V.4 Recommendations

VI. Physician obligations

5.1 Taking on new patients (Comment)

Project alternative

5.2 Providing information to patients

Project alternative

5.3 Exercise of freedom of conscience and religion

Project alternative

5.4 Necessary treatments to prevent harm to patients

Project alternative

Appendix “A” – Conscientious Objection– “Purpose” and “Principles”: Comment and critique

A1. Introduction

A2. “The fiduciary relationship between a physician and a patient.”

A3. “Patient autonomy.”

A4. “A patient’s right to continuity of care.”
“Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians.”
“Physicians have an obligation not to abandon their patients.”

A5. “A patient’s right to information about their care.”
“Physicians have an obligation to provide full and balanced health information, referrals and health services to their patients in a non-discriminatory fashion.”

A6. “Physicians should not intentionally or unintentionally create barriers to patient care.”
“Physicians have an obligation not to interfere with or obstruct a patient’s right to access legally permissible and publicly-funded health services.”

A7. “The College has a responsibility to impose reasonable limits on a physician’s ability to refuse to provide care where those limits are appropriate.”

A8. “Medical care should be equitably available to patients whatever the patient’s situation, to the extent that can be achieved.”

A9. “The College of Physicians and Surgeons has an obligation to serve and protect the public interest.”

A10. “The Canadian medical profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services.”

A11. “Physicians’ freedom of conscience should be respected.”

A12. “Physicians’ exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.”

A13. “Physicians’ exercise of freedom of conscience to limit the services that they provide to patients should be done in a manner that respects patient dignity, facilitates access to care and protects patient safety.”

A14. Summary

Appendix “B” – Scope of Conscientious Objection
Purported non-applicability of policy to assisted suicide, euthanasia

B1. Disclaimer

B2. Disclaimer inconsistent with opinion of the CMPA

B3. Disclaimer inconsistent with policy origin, previous statements

B4. Disclaimer inconsistent with links between abortion and euthanasia

B5. Principles support coercion of physicians to facilitate euthanasia

B5.3 “The fiduciary relationship between a physician and a patient.”

B5.4 “Patient autonomy.”

B5.5 “A patient’s right to continuity of care.”
“Patients should not be disadvantaged or left without appropriate care due to the personal beliefs of their physicians.”
“Physicians have an obligation not to abandon their patients.”

B5.6 “Physicians should not intentionally or unintentionally create barriers to patient care.”
“Physicians have an obligation not to interfere with or obstruct a patient’s right to access legally permissible and publicly funded health services.”
“Physicians’ exercise of freedom of conscience to limit the health services that they provide should not impede, either directly or indirectly, access to legally permissible and publicly-funded health services.”

B5.7 “Medical care should be equitably available to patients whatever the patient’s situation, to the extent that can be achieved.”

B5.8 “The College has a responsibility to impose reasonable limits on a physician’s ability to refuse to provide care where those limits are appropriate.”

B5.9 “The College of Physicians and Surgeons has an obligation to serve and protect the public interest. The Canadian Medical Profession as a whole has an obligation to ensure that people have access to the provision of legally permissible and publicly-funded health services.”

B6. Unsatisfactory reasons offered to support the disclaimer

B6.1 Questioning the reasons

B6.2 Answering the questions

Appendix “C” – Conscientious Objection – 5. Physician Obligations
Comment and Critque

C1. 5. Obligations (Project alternative)

5.1 Taking on new patients

5.2 Providing information to patients

5.3 Exercise of freedom of conscience and religion

5.4 Necessary treatments to prevent harm to patients

C2. Conscientious Objection and Project alternative compared

Table A. Taking on new patients

Table B. Providing information to patients

Table C. Exercise of freedom of conscience and religion

Table D. Necessary treatments to prevent harm to patients

C3. Commentary corresponding to the tables in C2

Table A 5.1 Taking on new patients

Table B 5.2 Providing information to patients

Table C 5.3 Exercise of freedom of conscience and religion

Table D 5.4 Necessary treatments to prevent harm to patients.

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Refusal (as revised)

5 June, 2015

Abstract

The conclusion that objecting physicians “should not be obligated to provide a referral to a physician who will ultimately potentially provide the service” is entirely satisfactory. It is a tacit admission that such a policy would be an unacceptable assault on freedom of conscience.

Conscientious Refusal as revised attempts to nullify the alleged ‘bias’ of physicians who object to a procedure for reasons of conscience by requiring them to refer patients to a non-objecting colleague. This proposal is not sound, since, if it is to be applied fairly and consistently, the ‘bias’ of physicians who do not object to a procedure should be nullified in the same way. This would simply exchange one kind of alleged ‘bias’ for another, inconvenience patients and provide them with no better care.

The more sensible course is to require all physicians to provide patients with sufficient information to satisfy the requirements of informed medical decision making. Physicians must advise patients at the earliest reasonable opportunity of services or procedures they decline to recommend or provide for reasons of conscience, advise affected patients that they may seek the services elsewhere, and ensure that they have sufficient information to approach other physicians, heath care workers or community organizations. They must not promote their own moral or religious beliefs when interacting with a patient.

Physicians unwilling to abide by these requirements must promptly arrange for a patient to be seen by another physician or health care worker who is able to do so.

If the College is determined to enact a policy on conscientious refusal, it should ensure that the policy adopted is sufficiently flexible to accommodate physicians with respect to all procedures or services. Otherwise, Council should reject Conscientious Refusal as revised and postpone policy development until after the Carter decision comes into force in 2016.

I. Revision of draft policy – Conscientious Refusal

II. Focus of this submission

III. Section 5.3

IV. Section 5.3: Suggested modification

V. Section 2: Scope

VI. Summary

Appendix “A” – Ontario College briefing materials

Appendix “B” – Providing Information

Appendix “C” – Conscientious Refusal and assisted suicide/euthanasia

Project Submission to the College of Physicians and Surgeons of Saskatchewan

Re: Conscientious Refusal

Abstract

The policy Conscientious Refusal requires all physicians who object to a procedure for reasons of conscience to facilitate the procedure by referring patients to a colleague who will provide it, even if it is homicide or suicide. No evidence was provided to justify the policy. None of the arguments provided to Council justify the policy, nor do the principles included in the text.

Conscientious Refusal fails to recognize that the practice of medicine is a moral enterprise, that morality is a human enterprise, and that physicians, no less than patients, are moral agents.

The original text virtually copied by Conscientious Refusal was written by believers: by people who believe that whatever is “legally permissible and publicly-funded” is morally acceptable- including euthanasia, assisted suicide and abortion. It is an assertion of those beliefs and an authoritarian attempt to compel others to conform to them. It is a partisan document that is profoundly disrespectful of the moral agency of physicians, not a compromise.

Conscientious Refusal advances the dangerous idea that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong and punish them if they refuse. This is not a limitation of fundamental freedoms, but a serious violation of human dignity. It is also incoherent, because it posits the existence of a moral or ethical duty to do what one believes to be wrong.

The Associate Registrar has made it clear that those who refuse to do what the policy demands will be disciplined by the College or forced out of the medical profession. This clashes seriously with the approach taken by the Supreme Court of Canada, which has affirmed that public policy must make room for physicians whose “concept of the good life” precludes their participation in abortion, euthanasia, assisted suicide or other morally contested procedures.

The burden of proof was on the Associate Registrar and the appointed committee to prove beyond doubt that Conscientious Refusal is justified and that no less authoritarian alternatives are available. They failed to discharge that burden; neither has College Council discharged it. The policy should be withdrawn.

I. Origin of the draft policy, Conscientious Refusal

II. Content of the proposed policy

III. Focus of this submission

IV. Justification for the proposed policy

V. The issues

VI. Response to the issues