Tag: Sean Murphy

Canadian MP introduces protection of conscience bill

Bill C-268 (2016)  Protection of Freedom of Conscience Act

Sean Murphy*

Conservative Member of Parliament Kelly Block has introduced a bill that would make it a crime to coerce medical or nurse practitioners or other health professionals to take part, directly or indirectly, in “medical assistance in dying.” The preamble of the bill makes clear that it is intended as a protection of conscience measure.

The text of the bill is much the same as a bill proposed by MP Mark Warawa in 2016.

“Medical assistance in dying” means euthanasia and assisted suicide provided by physicians or nurse practitioners. Since it is considered medical treatment in Canada, it falls within provincial jurisdiction over health care. Similarly, provinces have primary jurisdiction over human rights like freedom of conscience. Thus, the federal government has been easily able to refuse amendments like this on the grounds that they unconstitutionally trespass on provincial jursidiction.

The federal government has constitutional jursidiction in criminal law and could make it a crime to compel someone to be a party to homicide and suicide. Since “medical assistance in dying” is non-culpable homicide and non-cuplpable assisted suicide, such a law would provide protection for health care professionals unwilling to be parties to killing their patients or helping them commit suicide, without intruding upon provincial jurisdiction.

The Protection of Conscience Project has repeatedly made this suggestion to Canadian parliamentarians, but its submissions have been ignored.

It is remarkable that the Canadian government clearly believes it is acceptable to compel citizens to become parties to homicide — killing other people — and punish them if they refuse. It is, perhaps, even more remarkable that Canadians are unwilling to talk openly about this.

Portuguese assisted suicide/euthanasia law and freedom of conscience

Sean Murphy*

The Portuguese parliament passed Decree No. 109/XIV on 29 January, 2021, legalizing euthanasia and assisted suicide. It has been referred by the President of Portugal for a review by Portugal’s Constitutional Court.

The law permits physicians and nurses to assist in suicide or provide euthanasia for eligible patients.  Eligible patients are adult nationals or legal residents of Portugal who experience intolerable suffering as a result of an extremely severe and permanent injury or incurable terminal illness.  Eligible patients must also demonstrate a serious, voluntary, informed, continuing and reiterated decision to seek euthanasia/assisted suicide.  Physicians who are satisfied that a patient is eligible must obtain the approval of  the Committee for the Verification and Evaluation of Clinical Procedures for Advancing Death (CVA) before providing the procedure.

The law includes a protection of conscience provision.  Any health professional may decline to “practise or assist in the act of antecipação da morte de um doente“, which, literally translated, means the act of “anticipating the death of a patient.”  However, from the context it appears that this is more correctly translated as “advancing the death of a patient.”  To assist in “advancing the death of a patient” is broad enough to encompass diagnosis, evaluation and facilitation by referral or other means.

An objection can be based upon clinical, ethical or other grounds.  An objecting professional must advise a patient of the objection and reasons for it within 24 hours, presumably within 24 hours of a request from the patient.  Objectors must also give written notice to the person in charge of the health establishment where they work and to their professional orders.  Such an objection is permanently and universally valid and “does not need to be justified” (e não carece de fundamentação).  This appears to mean that objectors are not required to demonstrate that their clinical, ethical or other reasons for refusing to participate are correct.

The law is not clear about the freedom of health care facilities to refuse to be involved with euthanasia and assisted suicide or to prohibit the procedures on their premises. Article 12.1 states that it is up to the patient to determine the location for the procedure (“A escolha do local para a prática da morte medicamente assistida cabe ao doente.”). However, nothing in the law requires a facility to comply with a patient’s choice. The rest of Article 12 simply describes places where the services can be provided.

Lack of clarity on this point is likely to cause problems, especially if Portuguese euthanasia/assisted suicide advocates are as aggressive as those in Canada. See, for example:

Medicine, morality and humanity

Sean Murphy*

Medicine is a moral enterprise.

Medicine, morality and humanityThe practice of medicine is an inescapably moral enterprise precisely because physicians are always seeking to do some kind of good and avoid some kind of evil for their patients. However, the moral aspect of practice as it relates to the conduct and moral responsibility of a physician is usually implicit, not explicit. It is normally eclipsed by the needs of the patient and exigencies of practice. But it is never absent; every decision concerning treatment is a moral decision, whether or not the physician specifically adverts to that fact.

This point is frequently overlooked when a physician, for reasons of conscience, declines to participate in or provide a service or procedure that is routinely provided by his colleagues. They may be disturbed because they assume that, in making a moral decision about treatment, he has done something unusual, even improper. Seeing nothing wrong with the procedure, they see no moral judgement involved in providing it. In their view, the objector has brought morality into a situation where it doesn’t belong, and, worse, it is his morality. . .  [Full Text]

To kill — or not to kill? That is the question.

An answer for a Dying With Dignity clinical advisor

Sean Murphy*

I just can’t understand why as learned as you are, you tenaciously use the verb KILL to refer to MAD. You cannot ignore that this verb requires a non-consenting victim. It makes of you a malicious pro-lifer who does not mind lying. MAD must be requested ! Camus wrote: «To misname things amount to adding to the world’s misery»…in La Pléiade, Oeuvres complètes p. 908.

This message was left for the Project Administrator by a member of the Clinicians’ Advisory Council of Dying With Dignity (DWD) Canada after he/she had downloaded several papers from the Administrator’s Academia web page.

The downloaded papers do not challenge the legalization of euthanasia and assisted suicide (EAS). The substantive morality of the procedures and their legalization is outside the scope of Project advocacy. The papers simply defend practitioners unwilling to be parties to killing their patients by providing or facilitating EAS services.

Unfortunately, the DWD Clinical Advisor was exasperated by the description of euthanasia and assisted suicide as “killing.” This, he/she exclaims, is a malicious lie that adds to the world’s misery.

Such a cri de cœur calls for a thoughtful discussion of the question it raises.

Does providing euthanasia and assisted suicide entail killing — or does it not? [Full text]

Court challenge raises issue of “reasonable apprehension of bias”

Sean Murphy*

Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.

In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights.  The policy requires physicians  to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service.  A constitutional challenge to the policy was dismissed by  the Ontario Divisonal Court in 2018.[1] An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.

Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015.  In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]

College officials  finalized the wording of the policy on 19 January, 2015,[3]   a month before the consultation ended; only about 565 submissions would have been received by then.[4]  727 submissions had been received  by the time the policy was sent to the Executive Committee on 28 January,[5]  which promptly endorsed it and forwarded it to the College Council for final approval.[6]

According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7]  Thus, the final version of the policy was written and approved by the College Executive before about  90% of the submissions in the second consultation had been received.

Submissions received by CPSO from 10 Dec 2014 to 20 Feb 2015

During the first 40 days ending 11 February, the College received an average of about 18 submissions per day.  Assuming someone spent eight full hours every working day reading the submissions, about 22 minutes could have been devoted to each.  Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.

Time available for analysis of submissions

However, this seems unlikely in the case of more than 8,000 submissions received later.

By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes.   A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days  – over 65% of the total.

A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome.  This conclusion is consistent with the finalization and approval of the policy  by the six member College Executive (which included the Chair of the  working group that wrote it [8]).  To do this weeks before the consultation closed was contrary to normal practice.  CPSO policy manager Andréa Foti stated that working groups submit revised drafts to the Executive Committee  after public consultations close[9] – not before.

One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy.  Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.

1. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (Can LII)  [CMDS v CPSO].

2. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 1, Tab 1, Affidavit of Andréa Foti [Foti] at para 121.

3.    Foti, supra note 2 at para 133.

4. Estimated daily average based on the total received by 28 January (727).

5. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab WW, Exhibit “WW” attached to the Affidavit of Andréa Foti: Executive Committee Briefing Note (February, 2015) (CPSO Exhibit WW) at 1724.

6. CMDS v CPSO, supra note 1  (Respondent’s Application Record, Volume 4, Tab XX, Exhibit “XX” attached to the Affidavit of Andréa Foti: Proceedings of the Executive Committee – Minutes – 3 February, 2015) (CPSO Exhibit XX) at 1746-1748.

7. “Council Briefing Note: Professional Obligations and Human Rights – Consultation Report & Revised Draft Policy (For Decision)” [CPSO Briefing Note 2015].  In College of Physicians and Surgeons of Ontario, “Annual Meeting of Council, March 6, 2015” at 61.

8. Dr. Marc Gabel. See CPSO Exhibit WW, supra note 4 at 1722 (note 1), and CPSO Exhibit XX, supra note 5 at 1746.

9. Foti, supra note 2 at para 36.