College of Physicians and Surgeons of Ontario decided results of consultation before it started

College decided that physicians must refer for euthanasia/assisted suicide at least a month before consultation began

News Release

Protection of Conscience Project

The College of Physicians and Surgeons of Ontario (CPSO) decided by the first week of November, 2015, that it will force Ontario physicians who refuse to kill patients or help them commit suicide to find someone willing to do so.  The decision was made a month before the College began a public consultation purporting to solicit input on that and other questions related to euthanasia and assisted suicide.

The decision was revealed in the Report of the Federal External Panel consultations on euthanasia and assisted suicide, released today.

When College representatives appeared before the Panel in Toronto between 2 and 6 November, they told the Panel  “that physicians who object to physician-assisted dying requests have a positive obligation to make an effective referral.”

An effective referral, as described by the Ontario College, is a referral made in good faith to a non-objecting available and accessible physician, other health care professional, or agency. The College noted that the medical community has an obligation to ensure access and that conscientious objection should not create barriers.” (p. 100)

“The Protection of Conscience Project submission was made on 10 January, said Sean Murphy, Project Administrator.

“Two days later, the Canadian Medical Association made an excellent submission rejecting the proposal of  ‘effective referral’,” he added.

“Many people responded in good faith to the College’s invitation to participate in the consultation,” said Murphy.  “But it seems that public consultations about College policy are an expensive and time-consuming charade.”

Last year, College officials wrote the final version of the CPSO policy demanding “effective referral” for morally contested procedures a month before the consultation closed. About 90% of 9,000 submissions on the subject were received after the final version had been written.

Canadian Medical Association Submission to the College of Physicians and Surgeons of Ontario

Consultation on CPSO Interim Guidance on Physician-Assisted Death

Project Introduction

The following submission sets out the position of the Canadian Medical Association (CMA) on referral, within the context of the provision of euthanasia and assisted suicide.  The submission concerns a proposed policy by the state regulator of medicine in the province of Ontario, the College of Physicians and Surgeons (CPSO).  The College proposed that its policy of “effective referral” for morally contested services be applied to euthanasia and assisted suicide.

Among the excellent points made by the Association:

It is in fact in a patient’s best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement. . . . medical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.

Full text of the CMA submission

 

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.

Contents

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

Jewish physicians’ freedom of conscience and religion and the Carter Case

Wagner-Sidlofsky LLP
Reproduced with permission

Charles Wagner* and Adam Hummel*

How does the decision in the Supreme Court of Canada (SCC) in Carter v. Canada (Attorney General)1 (“Carter”) impact on the religious Jewish doctor? Will this landmark decision bring into conflict these doctors’ freedom of conscience and religion with their professional obligations? The Carter case sets aside federal criminal laws as they relate to physician assisted suicide. It stands for the proposition that individuals who are suffering unbearably have a constitutional right to a physician-assisted suicide. Canada now joins only eight other countries in the world that have decriminalized physician-assisted suicide in recent years. This is a fundamental change in the law.

Previously, in the 1993 decision of Rodriguez v. British Columbia (Attorney-General)2, the SCC confirmed the criminal sanctions as they related to physician-assisted suicide, while justifying their ruling by citing the protection of the sanctity of life. Given the importance of Carter, the authors will consider some of the main concepts discussed in the decision, and consider how the SCC’s position has changed over the last 22 years. . . [Full text]

 

Podcast: Amir Attaran and the elves: A law professor makes much ado

Podcast: Amir Attaran and the elves: A law professor makes much adoA response to   “Doctors can’t refuse to help a patient die – no matter what they say”, a column by University of Ottawa law professor Amir Attaran.  He refers to  the alleged “corrosive hostility” of the Canadian Medical Association to “physician-assisted dying” and its “cowardly and stupid” position on the procedure, including support for physician freedom of conscience. [Full text – Amir Attaran and the elves]

Podcast Contents

Introduction (00 – 01:40)

Attaran: CMA siding with “bigots”  (02:11 –  4:50  )

Attaran: “they cannot refuse”  (05:23 – 06:33)

What Professor Attaran left out  (06:34 – 08:15 )

Professor  Attaran then and now  (08:50 – 09:56)

Law on abortion vs. law on homicide  (09:57 – 11:32)

A difference in perspective  (11:33  – 13:12)

What else Professor Attaran left out  (13:13 – 18:38)

Getting the facts backwards  (19:11 – 20:50 )