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]