Tag: Carter v. Canada

Responding to “Patient rights – even in death – must trump a doctor’s discomfort.” Globe and Mail, 1 February, 2016

Sean Murphy*

According to André Picard, the Supreme Court of Canada decided last year that patients could ask to be killed by physicians or ask physicians to help them commit suicide, but physicians could not be compelled “to actually kill a patient.” He describes this as “a perfectly reasonable balancing and reconciling of rights.”¹

Indeed, it is perfectly reasonable to believe that physicians should not be forced to actually kill a patient. However, Mr. Picard is mistaken when he claims that the Supreme Court of Canada reconciled or balanced the rights of patients and physicians in the Carter ruling. The Court did not even attempt to do so, stating, instead, that patient and physician rights “will need to be reconciled.”²

With respect to physicians, the Court stated that “nothing” in the ruling would compel physicians to “provide” or “participate in” euthanasia or assisted suicide. This is precisely the language and thinking adopted by the Canadian Medical Association (CMA) in its policy framework.³ Mr. Picard is clearly angry about this, calling it “a cop-out that creates real barriers for desperately ill patients,” one that “regulators and legislators cannot and should not accept.”

However, in the face of the Carter ruling, Mr. Picard cannot expect the CMA, regulators and legislators to impose his deeply held personal belief that refusing to compel physicians to provide or participate in homicide or assisted suicide is an unacceptable “cop-out.”

Mr. Picard clearly prefers the policy of the College of Physicians and Surgeons of Ontario (CPSO) on “effective referral,” which demands that physicians who refuse “to actually kill a patient” must help find someone willing to do the actual killing.

Contrary to his claim that effective referral is a “well-established policy,” it was first imposed by the CPSO in Ontario last year in the face of overwhelming opposition, on the basis of deficient, erroneous and seriously misleading briefing materials, and without evidence that even a single person in Ontario had ever been unable to access medical services because of conscientious objection by a physician.⁴ It is the subject of an ongoing constitutional court challenge,⁵ and is not supported by the BC Civil Liberties Association – one of the driving forces behind Carter’s challenge to the law.⁶ None of this seems to concern Mr. Picard.

“Patient need takes precedence over physician discomfort,” he says, “and patient rights trump physician rights.”

However, the CMA’s Dr. Jeff Blackmer told the joint parliamentary committee on assisted dying that this is a false dichotomy. There are enough physicians willing to provide euthanasia or assisted suicide to meet the expected demand, he said, and other jurisdictions do not require “effective referral” by objecting physicians but there is no difficulty with access.⁷

“This should not be a debate between patient access OR the right to conscientious objection by health care professionals,” writes CMA President, Dr. Cindy Forbes. “We can absolutely accomplish both.”⁸

Mr. Picard’s demand that physicians must get over discomfort about killing people at least to the extent that they will contract out the actual killing no doubt reflects his deeply held personal beliefs. However, if the real goal is to ensure access – not ideologically driven ethical cleansing – there is no reason to demand that physicians do what they believe to be wrong. If the real goal is to ensure access to services – not to punish objecting physicians – that goal is best served by connecting patients with physicians willing to help them, and that can be done without demanding “effective referral.”

Notes

1. Picard A. “Patient rights – even in death – must trump a doctor’s discomfort.” Globe and Mail, 1 February, 2016 (Accessed 2016-02-04).

2. Carter v. Canada (Attorney General), 2015 SCC 5, para. 132. (Accessed 2016-02-04).

3. Canadian Medical Association,  Principles-based Recommendations for a Canadian Approach to Assisted Dying (2016) (Accessed 2016-01-09).

4. Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Saskatchewan (5 June, 2015) Re: Conscientious Refusal (as revised). Appendix “A”: Ontario College briefing materials .

5. Ontario Superior Court of Justice, Between the Christian Medical and Dental Society of Canada et al and College of Physicians and Surgeons of Ontario, Notice of Application, 20 March, 2015. Court File 15-63717.

6. Legislative Assembly of British Columbia, Report of Proceedings (Hansard), Select Standing Committee on Health. Wednesday, July 15, 2015, Issue No. 17, p. 270 (Accessed 2016-02-02).

7. Special Joint Committee on Physician Assisted Dying, Evidence: Wednesday, January 27, 2016. (Accessed 2016-02-04)

8. Forbes C. “Time for myth-busting on assisted dying.” Canadian Medical Association (4 February, 2016)