Legal Commentary Archives - Page 21 of 27 - Protection of Conscience Project News

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 4: The Problem of Killing

Abstract

The original text of Bill 52 did not define “medical aid dying” (MAD), but it was understood that, whatever the law actually said, it was meant to authorize physicians to kill patients who met MAD guidelines. The Minister of Health admitted that it qualifed as homicide, while others acknowledged that MAD meant intentionally causing the death of a person, and that its purpose was death. Various witnesses in favour of the bill referred explicitly to lethal injection and the speed of the expected death of a patient.

Given the moral or ethical gravity involved in killing, it is not surprising to find serious disagreement about MAD among health care workers. Conflicting claims made about the extent of opposition to or support for euthanasia within health care professions are difficult to evaluate, but a review of the transcripts of the legislative committee hearings into Bill 52 is instructive.

One physician member of the committee was shocked by the assertion that there is no moral, ethical, or legal difference betwen withdrawing life support and lethally injecting a patient. Hospices and palliative care physicians rejected participation in euthanasia. Sharp differences of opinion among other health care workers were reported. Support for killing patients by lethal injection was likened to support for the death penalty; that is, many more agreed with the act in principle than were willing to do the actual killing. So marked was the evidence of opposition to euthanasia that doubts were raised about the possiblity of implementing the law.

Since the law was passed as a result of assurances from the Quebec medical establishment that it could be implemented, a committee member who is now a minister of the Quebec government warned that they would be called to account if it is found that few physicians are willing to participate. This political pressure is likely to provide an additional incentive for the medical establishment to secure the compliance of Quebec physicians.

The introduction of euthanasia into Quebec’s health care system is to be accomplished using the structures and powers established by other Quebec statutes that govern the delivery of health care in the province, which have established a multi-layered and overlapping bureaucracy of committees, councils, commissions, boards, directors, examiners, coordinators, syndics and commissioners. Physicians and other health care providers who object to euthanasia will find their working environments increasingly controlled by a MAD matrix functioning within this system, a prominent feature of which is an emphasis on patient rights.

Everyone authorized to enact or supervise adherence to policies or standards can become a MAD functionary, using codes of ethics, protocols, guidelines, directives, etc. to normalize euthanasia. Similarly, every disciplinary and complaints procedure can be used to force participation in MAD services. Those who openly advocate refusal to provide or facilitate euthanasia can be fined from $1,500.00 to $40,000.00 per day under Quebec’s Professional Code if they are deemed to have helped, encouraged, advised or consented to a member of a profession violating the profession’s code of ethics. [Full Text]

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 2: ARELC in Detail

Abstract

An Act Respecting End-of-Life Care (“ARELC”) is intended to legalize euthanasia by physicians in the province of Quebec. It replaces the original Bill 52, the subject of a previous commentary by the Project. ARELC purports to establish a right to euthanasia for a certain class of patients by including it under the umbrella of “end-of-life care.” ALERC calls euthanasia for competent patients “medical aid in dying” (MAD). ALERC provides for but does not identify euthanasia for incompetent patients, called here Euthanasia Below the Radar (EBTR).

ARELC’s definition of palliative care clearly distinguishes palliative care from MAD. In defining MAD, the statute does not say “kill,” but employs a euphemism: “hastening death.” Nonetheless, it is obvious that ARELC authorizes a physician to kill patients.

The MAD guidelines for euthanasia restrict it to legally competent persons at least 18 years old who are insured under the provincial Health Insurance Act. Beyond age, legal competence and residency/insurance, someone seeking euthanasia must be at “the end of life,” 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 administer the lethal drugs or substances, and, having done so, must remain with a patient until he dies. Physicians who provide MAD must report the fact to institutional authorities or the College of Physicians, as well as the Commission on End-of-Life Care.

A central role in the provision of euthanasia is assigned to institutional councils of physicians, dentists and pharmacists (or, in their absence, institutional directors of care). They are to adopt MAD guidelines, and then review reports from physicians who have provided the procedures to “assess the quality of the care provided.” The Collège des médecins is also to receive such reports from physicians and, apparently, to establish or at least recognize “clinical standards” relative to the procedures.

In addition to the MAD protocol, ARELC permits a substitute decision-maker to order that an incompetent patient be starved and dehydrated to death. This provides an alternative form of euthanasia subject to none of the restrictions or conditions imposed by MAD guidelines: hence the term used here – “Euthanasia Below the Radar” (EBTR). Since death by starvation and dehydration would be a painful process, it is likely that, in such circumstances, continous palliative sedation (CPS) would be used to anesthetize the patient. This may lead to the under-reporting of the actual number of euthanasia cases and further confusion about continuous palliative sedation.

Canadian criminal law is not affected by ARELC. A physician who does what ARELC requires in the MAD protocol 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 Text]

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 6: Participation in Killing

Abstract

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 6: Participation in Killing

It appears that, even where euthanasia or assisted suicide is legal, the majority of physicians do not actually provide the services. However, by establishing a purported legal “right” to euthanasia, ARELC generates a demand that physicians kill their patients, despite the high probability that a majority of physicians will not do so.

Often for purely pragmatic reasons, euthanasia supporters do not usually insist that an unwilling physician should be compelled to personally kill a patient. Thus, the difficulty created by the law can be addressed by administrative measures that connect patients looking for euthanasia with the minority of physicians willing to provide it. Nonetheless, physicians who object to euthanasia for reasons of conscience will likely be expected to facilitate access to the procedure by helping the patient find a colleague willing to provide it.

However, objecting physicians not only refuse to kill patients, but also often refuse to do anything that they believe makes them morally responsible for the killing. This includes actions that indirectly support or facilitate it. Hence, it is likely that most of the attacks on freedom of conscience resulting from ARELC will be preciptated, not by a refusal to kill directly, but by this kind of refusal to participate indirectly in killing.

The Criminal Code demonstrates that a physician who refuses to facilitate the killing of a patient because he does not want to be a culpable participant in killing is acting well within well-established moral and legal norms reflected in our criminal law. Further, the polices of professional medical organizations that forbid physician participation in capital punishment, torture, and female genital cutting indicate that it is not unreasonable for objecting physicians to refuse to facilitate euthanasia even indirectly.

On the contrary: refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is not aberrant behaviour. It is the response expected of physicians by professional bodies and regulators in order to avoid physician complicity in such procedures. [Full Text]

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 3: Evolution or Slippery Slope?

Abstract

Euthanasia laws frequently include guidelines and safeguards intended to prevent abuse. Eligibility criteria are the most basic guidelines or safeguards. In considering their stability, it is important to consider not only the elasticity of existing statutory provisions, but recommendations for expansion that might ultimately result in changes to the law.
ARELC’s requirement for legal competence can be sidestepped through the provision allowing substitute decision makers to order the starvation and dehydration of legally incompetent patients (Euthanasia Beneath the Radar- EBTR). Beyond this, there are strong indications that the reach of the law will be expanded to include legally incompetent patients.

The Quebec Commission on Human Rights and Youth Rights has indicated that it would consider refusal of euthanasia to the legally incompetent, uninsured persons or minors, including children, to be unlawful discrimination

No agreement was reached during legislative hearings about when a patient is “at the end of life,” so this added criterion provides only an opportunity for disagreement and judicial interpretation.

A “serious and incurable illness” could conceivably include clinical depression, which could cause “unbearable psychological pain” that cannot be relieved because the patient finds the side-effects of anti-depressants intolerable. Such a patient qualify for euthanasia, and the Quebec Ombudsman recommended that the possibilty of euthanasia for the mentally ill be seriously studied.

Expanding the law’s reach in these directions is supported by a number of powerful and influential organizations in Quebec; a number of them recommended an incremental approach to accomplish this.

For these reasons, it is reasonable to believe that ARELC’s criteria for euthanasia will be broadened by interpretation, by statutory amendments and by court rulings, so that, as time goes on, there will be more euthanasia, not less. Depending upon one’s moral or ethical perspective, this can be described as a slippery slope, a process of natural evolution (for better or worse) or progressive democracy in action.

It is not necessary here to determine which of these conflicting perspectives is the most accurate. It is sufficient to observe that the expansion of the eligibility criteria for euthanasia can be safely predicted. This is relevant to concerns about freedom of conscience because increasing the range of circumstances under which euthanasia can be provided increases the likelihood of conflicts of conscience and conscientious objection. [Full Text]

Redefining the Practice of Medicine- Euthanasia in Quebec, Part 1: Overview

Abstract

An Act Respecting End-of-Life Care (“ARELC”) is intended to legalize euthanasia by physicians in the province of Quebec. It replaces the original Bill 52, the subject of a previous commentary by the Project. The original text of the Bill 52 did not define medical aid in dying (MAD), but ARELC now makes it clear that Quebec physicians may provide euthanasia under the MAD protocol. In addition, substitute decision makers can order legally incompetent patients who are not dying to be starved and dehydrated to death. This practice, identified here as Euthanasia Below the Radar (EBTR), is completely unrestricted and is not even reportable.

Neither ARELC nor MAD guidelines can abolish the criminal prohibition of euthanasia, so physicians who kill patients in the circumstances contemplated by the new law would still be liable to prosecution. However, the Quebec government has promised that it will refuse to prosecute physicians who kill patients in accordance with MAD guidelines, thus circumventing the criminal prohibition. Beyond that, Quebec general practitioners have asked for immunity from prosecution for failing to conform to MAD guidelines. Some Quebec physicians may be unwilling to provide euthanasia while the criminal law stands. Quebec’s Attorney General may be unwilling to provide the extraordinary kind of immunity sought by physicians, and some physicians may be unwilling to provide euthanasia without it.

The introduction of euthanasia will require the complicity of thousands of health care workers and administrators. Many are likely to comply because official representatives of the legal and medical establishments of Quebec have formally declared their support for the new law. On the other hand, palliative care physicians, hospices and an undetermined number of other physicians and health care workers are opposed to euthanasia and assisted suicide.

Section 4 of ARELC states that eligible patients have a right to “end-of life-care,” which includes euthanasia and palliative care. The statutory declaration of a “right” is the most powerful weapon in the legal arsenal likely to be used to enforce compliance with ARELC and to attack freedom of conscience among those who refuse to facilitate the procedure.

It appears that, even where euthanasia or assisted suicide is legal, the majority of physicians do not actually provide the services. The Act may lead to discriminatory screening of physicians unwilling to kill patients, effected by denying them employment in their specialties and denying them hospital privileges.

However, objecting physicians not only refuse to kill patients, but also often refuse to do anything that they believe makes them morally responsible for the killing. Hence, it is likely that most of the attacks on freedom of conscience resulting from ARELC will be precipitated by refusal to participate indirectly in killing.

Physicians may refuse to provide euthanasia if the patient is legally ineligible, and for other reasons, including conscientious objection. ARELC requires physicians who refuse to provide euthanasia for any reason other than non-eligibility to notify a designated administrator, who then becomes responsible for finding a MAD physician. The idea is to have the institution or health care system completely relieve the physician of responsibility for facilitating the procedure.

The protection of conscience provision in ARELC distinguishes physicians from other health professionals, providing less protection for physicians than for others. Physicians may refuse only “to administer” euthanasia – a very specific action – which seems to suggest that they are expected to participate in other ways.

Palliative care hospices and a single Quebec hospital may permit euthanasia under the MAD protocol on their premises, but they do not have to do so. Patients must be advised of their policy before admission. The exemptions were provided for purely pragmatic and political reasons. The exemptions have been challenged by organizations that want hospices forced to kill or allow the killing of patients who ask for MAD. Hospice representatives rejected the first demand and gave mixed responses to the second. A prominent hospice spokesman predicted that hospices refusing to provide euthanasia will operate in an increasingly hostile climate.

Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is the response expected of physicians by professional bodies and regulators. It is not clear that Quebec legislators or professional regulators understand this. A principal contributor to this lack of awareness – if not actually the source of it – is the Code of Ethics of the Collège des médecins, because it requires that physicians who are unwilling to provide a service for reasons of conscience help the patient obtain the service elsewhere.

As a general rule, it fundamentally unjust and offensive to human dignity to require people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It was a serious error to include this a requirement in a code of ethics. The error became intuitively obvious to the Collège des médecins and College of Pharmacists when the subject shifted from facilitating access to birth control to facilitating the killing of patients.

A policy of mandatory referral of the kind found in the Code of Ethics of the Collège des médecins is not only erroneous, but dangerous. It purports to entrench a ‘duty to do what is wrong’ in medical practice, including a duty to kill or facilitate the killing of patients. To hold that the state or a profession can compel someone to commit or even to facilitate what he sees as murder is extraordinary.

Since ARELC explicitly authorizes physicians to kill patients deemed eligible for MAD by the Act, the federal government can go to court to have the statute declared unconstitutional. However, it is possible that the federal government will take no action until after the Supreme Court of Canada ruling in Carter v. Canada and after the 2015 federal election.

It seems unlikely that Quebec physicians who provide euthanasia under MAD guidelines will be prosecuted even if the prohibition of assisted suicide and euthanasia is maintained by the Supreme Court of Canada, and even if ARELC is ultimately struck down as unconstitutional. The continued de facto decriminalization of euthanasia in Quebec would probably generate considerable pressure in other provinces to follow suit.

Those who refuse to provide or facilitate euthanasia for reasons of conscience will likely find themselves in increasingly complicated and contentious working environments. 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 text]