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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Background

Canadian Medical Association and euthanasia and assisted suicide in Canada

Critical review of CMA approach to changes in policy and law

September, 2018

Sean Murphy*

Abstract

In December, 2013, the Canadian Medical Association (CMA) Board of Directors decided to shape the debate and law concerning euthanasia and assisted suicide and revisit CMA policy opposing physician participation in the procedures. By the summer of 2014 it was clear that the overwhelming majority of physicians supported the existing policy. However, it appears that the Board decided the policy should be changed before the Supreme Court of Canada decided the case of Carter v. Canada.

The Board sponsored an ostensibly neutral resolution affirming support for the right of physicians to follow their conscience in deciding whether or not to provide euthanasia/assisted suicide if the law changed. The resolution was overwhelmingly approved. Unnoticed at the time was that the resolution was not conditional upon eligibility criteria, such as decision-making capacity or terminal illness.

The CMA intervention at the Supreme Court of Canada in the Carter case emphasized that existing CMA policy against euthanasia and assisted suicide would be changed to reflect the resolution. It conveyed the message that the Association would support physicians who decided to participate in euthanasia or assisted suicide no matter how broadly the Court or legislatures might cast the rules governing the procedures.

The Board reversed CMA policy about two months before the Court ruled. It formally approved physician assisted suicide and euthanasia, subject only to legal constraints. The policy did not exclude minors, the incompetent or the mentally ill, nor did it limit euthanasia and assisted suicide to the terminally ill or those with uncontrollable pain. It classified both as "end of life care," promising support for patient access to the procedures should they be legalized. Support for physicians refusing to participate in euthanasia or assisted suicide was qualified by the statement that there should be no "undue delay" in providing them. Implicit in all of this was a new ethical paradigm: that in some circumstances, physicians have a professional obligation to kill patients or to help them kill themselves. 

The new policy effectively wrote a blank cheque for the Supreme Court of Canada to legalize euthanasia and physician assisted suicide on any terms acceptable to the judges. After the Court struck down the law CMA officials expressed concern about the criteria set by the Court. It was implied that the Supreme Court was to blame for anxiety and profound discomfort among Canadian physicians because it had imposed upon them an obligation to kill, contrary to centuries of medical ethics and practice.

However, the concerns voiced by CMA officials after the Carter ruling existed when the CMA intervened in the case, and the CMA did not raise them then. In fact, the Supreme Court gave legal effect to a policy the CMA had already adopted, and the criteria the Court set for the procedures were actually more restrictive than anything the CMA had proposed. The Court cannot be blamed because CMA leaders were ill-prepared to deal with the consequences of a ruling entirely consistent with their own policy.

The consequences fell most heavily upon physicians who refused, for reasons of conscience, to provide euthanasia and assisted suicide or to collaborate in providing the services by referral or other means. Since Carter, the debate in Canada has been largely about whether or under what circumstances physicians and institutions should be allowed to refuse to provide or facilitate the services. While it is generally agreed that physicians should not be compelled to personally provide them, there are strident demands that physicians unwilling to kill their patients or help them commit suicide should be forced to refer patients to someone who will.

This review demonstrates that the CMA Board of Directors focus in 2014 was on the role physicians would play in providing euthanasia and assisted suicide should the law change. The Board knew that the overwhelming majority of Canadian physicians would refuse to participate in euthanasia or assisted suicide. The fundamental conflict presented by imposing an obligation to kill upon unwilling physicians was foreseeable and had been foreseen by CMA officials. Attacks upon physician freedom of conscience, particularly with respect to referral, were predictable.

However, the Board failed to consider physician freedom of conscience in relation to assisted suicide and euthanasia except the extent that it could be used to further its policy goals. As a result, after the Carter ruling, CMA officials were quite unprepared to mount a cogent, articulate and persuasive defence of physician freedom of conscience, especially in relation to referral. They discovered that state authorities and the public were often unreceptive and even hostile to physicians unwilling to arrange for patients to be killed by someone else. Negotiating at a significant disadvantage of their own making, they were desperate to find a policy "acceptable to the regulators" and to objecting physicians whose fundamental freedoms they had rashly jeopardized.

The CMA has since produced a strong defence of physician freedom of conscience in relation to referral for euthanasia and assisted suicide, and sound protection of conscience provisions have been incorporated into a revised CMA policy on the procedures. However, by the time these statements appeared, objecting physicians were on the defensive in a treacherous and even hostile environment, compelled to launch an expensive constitutional challenge to defend fundamental freedoms of conscience and religion. The outcome of that case will determine if they will be able to continue to practise medicine if they refuse to collaborate in killing their patients.

The World Medical Association (WMA) national medical associations are free to decide to change their policies on physician participation in euthanasia or assisted suicide. This review demonstrates that they should not follow the example of the Canadian Medical Association if they wish to safeguard the fundamental freedoms of physicians and health care workers.


TABLE OF CONTENTS

INTRODUCTION

PART I    PRELIMINARIES TO CARTER

PART II    CMA ON FREEDOM OF CONSCIENCE AFTER CARTER

CONCLUSION


INTRODUCTION

The Canadian Medical Association (CMA) and Royal Dutch Medical Association (RDMA) are attempting to convince the World Medical Association (WMA) to drop its opposition to euthanasia and assisted suicide.1  It appears that the CMA is recommending its own management of the controversial subject as a progressive model that should be followed by the WMA and other national associations.2 

Since legalization of physician assisted suicide and euthanasia has potentially serious implications for freedom of conscience among health care workers, decisions by the WMA and its constituent members should be informed by a critical review of the CMA's approach to changes in policy and law.  This review considers the CMA's approach to euthanasia and assisted suicide only in relation to its impact on physician freedom of conscience.

Part I focuses on the period from August, 2013 to December, 2014.  During this time, the CMA Board of Directors actively engaged in a process leading to reversal of CMA policy against physician participation in euthanasia and assisted suicide and affirmation of the procedures as legitimate forms of end-of-life medical care.  The transition from opposition to affirmation was facilitated by the acceptance of an ostensibly neutral resolution on physician participation in euthanasia and assisted suicide.  Part I briefly considers the CMA's intervention in the landmark case of Carter v. Canada, and concludes with a consideration of the broad effects of the policy change and intervention in relation to the outcome of the case and the consequences for objecting physicians.

Part II begins on the eve of the Supreme Court of Canada decision in Carter in February, 2015 and concludes in the fall of 2015 with the approval of the CMA's draft framework for providing euthanasia and assisted suicide.  It describes the response of the CMA Board to attacks on physician freedom of conscience in the maelstrom unleashed by the Carter decision, particularly in relation to the critical and controversial issue of referral.  It also documents attempts by CMA officials to shape a policy on physician freedom of conscience that would  accommodate the expectations of medical regulators.  Part II concludes with a postcript on current CMA policy and the position of objecting physicians.


PART I    PRELIMINARIES TO CARTER
Canadian Medical Association (CMA) General Council
(August, 2013)
Reaffirmation of support for conscientious objection to euthanasia/assisted suicide

In June, 2012, in the case of Carter v. Canada (Attorney General), a judge of the Supreme Court of British Columbia struck down the absolute criminal prohibition of physician assisted suicide and physician administered euthanasia, suspending the ruling for one year to give governments the opportunity to implement the decision.3 

When the CMA Annual General Council convened in August, 2013, an appeal of the Carter decision was in progress, and a euthanasia bill had been introduced in the Quebec legislature. Delegates were presented with a motion from the Quebec Medical Association that the CMA should ask "all relevant levels of government to conduct a large-scale public consultation to consider the recognition of medical aid in dying as appropriate end-of-life care."4

A contentious debate followed, centred on the wording of the motion and the definition of terms, and the motion was defeated. Instead, delegates voted "to refer the issue to the CMA Board for future deliberation." The outgoing chair of the medical ethics committee said that the vote reflected "deep divisions within the medical community."4 

Another motion called for the CMA to replace the term "physician-assisted suicide" with "physician-assisted death" in all its official documents. According to a Globe and Mail report, this motion also generated a "passionate debate."

"Suicide is an unhappy word," said John O'Brien-Bell of Surrey, B.C., a past CMA president. "Assisting suicide is also illegal." Lawrence Erlick of Scarborough, Ont., tried to find a compromise, suggesting the unwieldy term "patient-requested medically assisted death." Robin Saunders, chair of the CMA ethics committee, would have none of it. "Let's call a spade a spade: It's euthanasia," he said.

Delegates voted to have the CMA Board review the issue and make a decision.5

However, delegates did pass the following motion:

36. The Canadian Medical Association supports the right of any physician to exercise conscientious objection when faced with a request for medical aid in dying. (DM 5-22).6

CMA Board decides to shape the debate and the law
(October, 2013)
The decision

In October, 2013, the BC Court of Appeal reversed the Carter trial court ruling.7  The Court of Appeal quoted the CMA policy against physician participation in euthanasia and assisted suicide, setting it beside the policies of other associations, as the trial judge did, to make the point that the evidence at trial "did not demonstrate a clear consensus of public or learned opinion on the wisdom of permitting physician-assisted suicide."8  It was generally understood that the case would be appealed to the Supreme Court of Canada.

The CMA Board held a retreat the same month, apparently for the purpose of deciding upon a course of action concerning euthanasia and physician assisted suicide. In describing the "dilemma" faced by the Board, Dr. Blackmer noted that polls had demonstrated that the large majority of physicians were opposed to euthanasia and assisted suicide, but the public was increasingly in favour of the procedures.  Consistent with the position of the majority of physicians, CMA policy was against both.  According to CMA Vice-President Dr. Jeff Blackmer, the choice faced by the Board was to leave the policies unchanged, or "play a more active role in representing its membership." The Board opted to become involved in what Dr. Blackmer called the "national conversation." It meant to shape the debate and law concerning euthanasia and assisted suicide, and authorized "a substantial budget and significant internal resources" for that purpose.2  CMA President Chris Simpson later explained, "We realized that this was something that society needs us to lead on."9

Shaping the debate and the law: in brief

The great majority of CMA members opposed legalization of euthanasia and assisted suicide, but, in representing CMA members in the "conversation," the Board appears to have decided to include both majority and minority perspectives.  This was challenging but worthwhile, and need not have had any adverse effects on physician freedom of conscience. 

However, by the summer of 2014, it appears that the Board's plan to shape the debate and the law had evolved into a plan to overturn CMA policy against the procedures, notwithstanding the opposition of the majority of physicians, apparently because it had concluded that euthanasia and/or assisted suicide should be legalized in at least some cases.  According to Dr. Chris Simpson, then CMA President, the Board decided that there was no consensus on the procedures, and "There can't be a one-size-fits-all. We have to have the ability to fit everybody's legitimate concerns and aspirations here."10

Belief that the Carter case would result in legalization of the procedures also seems to have contributed to the Board's plan to change CMA policy.11,12 The Board wanted to ensure not only that the CMA would be involved in writing and implementing a new law,13,14,15,16 but would be in the vanguard of what would be a momentous change.17,18,19,20 That meant being on the right side of history if, as widely expected, the Supreme Court ruled that the law should be changed.21,22 However, that also meant achieving a major policy change at the General Council in August, as the next opportunity to do so would not come for another year.

Beginning in June, 2014, with a General Council two months away and a Supreme Court hearing expected in the fall, the Board put into action what was probably a still evolving plan, without reflecting adequately upon the effects of their actions on medical practice and the fundamental freedoms of physicians.  As a result, they were surprised by elements of the Supreme Court ruling and ill-prepared to respond, especially to challenges to physician freedom of conscience.

CMA Board revises euthanasia and assisted suicide policy
(December, 2013)

In December, 2013, the CMA Board approved changes to Association policy on euthanasia and assisted suicide.23  The update, published in 2014, introduced new terminology and reiterated the Association's opposition to the procedures. Three statements in the policy are of particular interest:

A change in the legal status of these practices in Canada would represent a major shift in social policy and behaviour. For the medical profession to support such a change and subsequently participate in these practices, a fundamental reconsideration of traditional medical ethics would be required. (p. 2, emphasis added)

Physicians, other health professionals, academics, interest groups, the media, legislators and the judiciary are all deeply divided about the advisability of changing the current legal prohibition of euthanasia and assisted suicide. Because of the controversial nature of these practices, their undeniable importance to physicians and their unpredictable effects on the practice of medicine, these issues must be approached cautiously and deliberately by the profession and society. (p. 2)

The CMA recognizes that it is the prerogative of society to decide whether the laws dealing with euthanasia and assisted suicide should be changed. The CMA wishes to contribute the perspective of the medical profession to the examination of the legal, social and ethical issues. (p. 3)

There was no reference to the resolution passed by the Annual General Council in 2013 asserting "the right of any physician to exercise conscientious objection when faced with a request for medical aid in dying,"  but this would have been premature.  Assisted suicide or euthanasia were still illegal, and the Association's position still stated that physicians should not participate in either.

CMA studies euthanasia & assisted suicide
(January-June, 2014)

During 2014, pursuing the direction given by the Board the previous October, CMA officials quietly studied the provision of physician assisted suicide and euthanasia in Oregon, Washington, Montana, Vermont and New Mexico, Netherlands, Belgium and Switzerland.12 It also held five town hall meetings across Canada in the first half of the year, ending on 27 May in Mississauga.  With respect to euthanasia and assisted suicide, the report about the meetings noted that "the public often had diametrically opposed views,"24  was divided on whether or not the procedures should be legalized,25 and stated that the potential impact of legalization on the medical profession "should be carefully considered and studied further."26

Six meetings were also held with physicians across the country, and a website was maintained for physician-only comment from February to the end of May. The report of the consultation stated that the meetings and on-line responses were characterized by "diametrically opposed views" on euthanasia and assisted suicide.27  The majority of CMA members participating opposed physician involvement in the procedures,28 (71.5% of an on-line poll29), while "[a] significant minority" (25.8% of poll respondents29) believed that the policy "should at least be reviewed if not revised to support some form of physician-assisted dying."28.

A majority of about 66% in the recent Irish abortion referendum has been described as "overwhelming,"30 a "landslide"31 and "decisive."32 By this standard, a larger-than-overwhelming majority of Canadian physicians opposed a change in CMA policy.  No one has suggested that the referendum result left the Irish government doubtful about its mandate.  However, the CMA consultation report - finalized at about the time the Board seems to have launched its plan to change CMA policy - stated that the Association "was not given a clear cut mandate on future activity dealing with the sensitive area of euthanasia and physician-assisted dying."28 

CMA announces plan to intervene in Carter v. Canada
(April, 2014)

The month before the town hall meetings ended, CMA President Dr. Louis Hugo Francescutti and Dr. Jeff Blackmer announced that the Association would intervene in the Supreme Court of Canada in the Carter case.

. . . the CMA will be seeking intervener status before the Court, not to offer a polarizing "pro" or "con" view on an already divisive issue - our policy is clear and speaks for itself - but to share a narrative of insights on the physician's perspective. The goal would be to provide the Court with a deeper understanding and appreciation of the findings from the CMA's dialogue on end-of-life care, the spectrum of options and the current CMA policy perspective. We would also highlight the challenges posed to physicians' understanding of their traditional roles if the Court were to change the law.33

One person's right is another person's obligation, and sometimes great burden. And in this case, a patient's right to assisted dying becomes the physician's obligation to take that patient's life. Dr. J. Blackmer, Dr. H. Francescutti (CMA) Tweet this
Dr. Blackmer and Francescutti also claimed that the 2013 Annual General Council rejected the motion calling for national consultation "to regard medical aid in dying as appropriate care" because  "medical aid in dying" had never, until that point, been properly defined."  This substantially understated the significant differences that were evident to those observing the proceedings. They did, however, make the following observations:

One person's right is another person's obligation, and sometimes great burden. And in this case, a patient's right to assisted dying becomes the physician's obligation to take that patient's life.

We have heard from many of our members that this prospect makes them not only uncomfortable but downright terrified. . .

. . .only a tiny minority of patients at the end of their lives request access to medical aid in dying. Until we can provide access to palliative care to all Canadians who need it, this is where the focus of our attention should remain . . . 33

Given the concern expressed by Dr. Blackmer and Dr. Francescutti in April, 2014 about imposing an obligation to kill upon physicians, and the ramifications of doing so, one would expect this to have been a constant concern of the CMA Board with respect to the legalization of euthanasia and assisted suicide.  However, it does not seem to have been considered again. The failure to attend to this issue left most physicians unaware of its significance, and of the significance of the policy direction taken by the CMA Board from June, 2014.

CMA applies for intervener status in Carter v. Canada
(June, 2014)

In June, 2014, the CMA applied for leave to intervene at the Supreme Court of Canada in Carter v. Canada. The application was supported by an affidavit by Dr. Chris Simpson, president-elect.13 Quoting then CMA policy, he emphasized deep divisions of opinion among physicians, other health professionals, academics, interest groups, the media, legislators and the judiciary (para. 23).

With reference to physicians, Dr. Simpson observed that a 2011 survey indicated that only 16% of Canadian physicians would provide euthanasia or assisted suicide, while 44% would refuse (para. 33). He noted that it was clear that the public was divided on the issue (para. 38, 39d).

While drawing attention to the strong opposition of Quebec palliative care physicians to the province's proposed euthanasia law, as well as doubts expressed by some family physicians, Dr. Simpson nonetheless noted that physicians had "worked through and continue to assess the appropriate ethical perspectives" of euthanasia, and that both the Quebec Medical Association and Collège des médecins du Québec supported the legislation (para. 44).

In describing then current CMA policy, Dr. Simpson drew the court's attention to  worries about a "slippery slope." However, he made special note that a Royal Society panel of experts had concluded that there was "no basis to these arguments." (para. 29)

The affidavit acknowledged but downplayed then CMA policy against physician participation in euthanasia and assisted suicide, stating that it was "not a certainty nor is it perpetually frozen in time" (para. 28):

. . .while the policy states that the CMA is opposed to physician-assisted death "Canadian physicians should not participate in euthanasia or assisted suicide"), it frames it as a societal issue and envisages the possibility of change, as informed by a dialogue between physicians, patients and the legislatures. . .(para. 25)

Consistent with statements made two months earlier by Dr. Blackmer and Dr. Francescutti, Dr. Simpson stated that a CMA intervention would not offer "a black and white perspective" (para. 57), which "would be a disservice to the issues and the Court," since, he wrote, "Such a perspective does not exist," adding, "The CMA's current policy is not static and can change (para. 58, emphasis added).

The affidavit also envisaged a key role for physicians should the law be changed:

If the law changes, physicians will be key players in any assisted death regime. They will play two critical roles. First, they will have to determine whether an individual patient's wish to be assisted in dying meets the threshold. Second, they will have to prescribe the agents leading to death, and to provide the patient with bedside care through the process leading to death. Plainly, assisted death, if sanctioned by law, has no prospect of implementation unless physicians in sufficient numbers across the country are persuaded that the sanctioned regime is ethical, practical, and in accordance with existing medical standards. . . (para. 56)

Nothing in the affidavit suggested that the CMA would oppose legalization of physician assisted suicide and euthanasia, and it did not state that the CMA would support it.  However, it clearly implied that, should the court legalize the procedures, the Association would likely change its policy, and that physicians would be "key players" whose cooperation would be needed to make assisted suicide and euthanasia available. 

CMA Board resolution on euthanasia and assisted suicide
(June-July, 2014)

During 2014 there was continual discussion of physician assisted suicide and euthanasia by the CMA Board. CMA Board member Dr. Ewan Affleck proposed that the Board sponsor a resolution at the August Annual General Council. What he later told the Northern News Service suggests that this probably occurred in June.

"CMA applied for intervener status with the Supreme Court," said Affleck.

"That was some of the urgency in developing our position, we knew the Supreme Court was moving forward and we wished to have a clear position."33

At that point, the CMA's position was clear; the Association opposed physician participation in euthanasia and assisted suicide. If Dr. Affleck and others on the Board included in his "we" wanted a "clear position," they must have wanted something different.  Dr. Affleck, who described himself as "passionate about the issue of end-of-life choices" because of personal experiences, explained what happened.

"We had been discussing this issue at length at the level of the board for a good long while because it is an important issue," said Affleck.

"We had a lot of debates and then I sat down and wrote a proposal for a motion and then took it back to the board as a board member and it was quite uniformly well accepted."34

The resolution proposed by Dr. Affleck stated:

The Canadian Medical Association supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether to provide medical aid in dying as defined in CMA's policy on euthanasia and assisted suicide.35 

The Board thus agreed that the CMA should support physicians who participate in assisted suicide and euthanasia as well as those who refuse to do so, but this could hardly be considered a "clear position" when read in conjunction with existing CMA policy.  The Board's support for the resolution conflicted with CMA policy against physician participation. 

However, the resolution had to be accompanied by a supporting rationale, which, according to CMA rules, is the means by which the General Council gives policy guidance and direction to the Board.36 Thus, as the sponsor of the resolution, the Board wrote - or at least approved in advance - the kind of guidance it wanted to use to resolve the apparent conflict.

The rationale for the motion noted the "polarizing nature" of the subject reflected in divisions among the public and CMA members. It argued that unanimity among Association members seemed unlikely, and that those supporting and those opposing assisted suicide and euthanasia could marshal "just moral and ethical arguments" to support their respective positions.  While the wording of the motion seemed to suggest the adoption of a laissez-faire position concerning participation by individual physicians, the rationale went much further, asserting that the current prohibition "may adversely impact patients with terminal conditions and unremitting suffering from obtaining compassionate care."

Implicit in CMA's mission statement, helping physicians care for patients is the centrality of the patient in the mandate of Canadian physicians.

CMA's current policy on euthanasia and assisted suicide suggests that Canadian physicians should not participate in assisted death. This poses a dilemma for CMA, as it could be suggested that a prohibition on physician-assisted death bars physicians from providing a service desired by some patients to alleviate pain and suffering.36

The CMA Code of Ethics, it was argued, "implies the paramount importance of honouring the will of the patient in determining the course of therapy they receive, including end-of-life therapy."

Given that evidence supports that there are competent Canadians with terminal illness who seek the services of physicians to assist them with dying, how then can Canadian physicians justify withholding a service against the will of a patient?36

Rhetorical questions are meant to elicit expected answers. The answer obviously expected by the Board in this case was that the CMA could not justify refusing assisted suicide and euthanasia to competent patients who are terminally ill and want to kill themselves or have a physician kill them.

This strongly suggests that, at least by June, 2014, the Board had come to believe that CMA should formally approve physician participation in assisted suicide and euthanasia, in order, as Dr. Simpson said, accommodate "everybody's legitimate concerns and aspirations."10  However, they did not put this to the General Council. Instead, the resolution they sponsored was ostensibly limited to the exercise of freedom of conscience, supported by an appeal to adopt a policy of neutrality:

Rather than choosing to prohibit or approve physician-assisted death, CMA will best serve Canadians seeking quality health care by highlighting that physicians may follow their conscience when deciding whether to participate within the bounds of existing law.36 (Emphasis added)

Consistent with the conclusion about the Board's opinion, the appeal to neutrality included the decidedly non-neutral view that physician assisted suicide and euthanasia could be considered "quality health care" in at least some circumstances. 

CMA General Council
(August, 2014)
Briefing materials

Briefing materials were prepared for the CMA Board and delegates to the Annual General Council. The materials included relevant resolutions passed at the 2013 Annual General Council, an outline of the town hall meetings held in 2014 and a backgrounder for the strategy session on Care at the End of Life (Appendix 2).37 The 2013 resolution that physicians had a right to conscientious objection was listed with eight other resolutions passed at the same time (p. A2-1). It was not included in the summary of CMA policy that followed.

Key elements of the then current CMA policy on euthanasia and assisted suicide were partially reproduced, the redaction of one of which is noteworthy:

For the medical profession to [*support such a change and subsequently*] . . . participate in these practices, a fundamental reconsideration of traditional medical ethics would be required." [*Replaced by elipsis*](p. A2-2)

If even supporting legalization of euthanasia and assisted suicide would require "a fundamental reconsideration of traditional medical ethics," one would expect that a briefing note to delegates would have directed their attention to that point rather than away from it, especially since the Board planned to ask them to support a change in policy conducive to legalization.

The backgrounder reported that the CMA had applied for leave to intervene in the Carter case. It posed five strategic questions to focus the discussion. Three referred to euthanasia and assisted suicide; the last presumed a "need for euthanasia and assisted suicide." 

3) Should the CMA revise its current policy on euthanasia and assisted suicide?

4) If the law is changed in Canada to make euthanasia or assisted suicide legal how should the medical profession respond?

5) If access to palliative care services was universal, would it eliminate the need for euthanasia and assisted suicide?(p. A2-4) [Emphasis added]

Included in the backgrounder was "Schedule 'A'", which outlined patient eligibility, process, and physician obligations respecting euthanasia/assisted suicide in jurisdictions where the procedures are legal.  It stated that objecting physicians in Washington, Vermont, Oregon, Belgium, and Luxembourg "have a duty to transfer patient care to another physician who can fulfil the request." (p. A2-7)This was erroneous and misleading: erroneous, because the law in Vermont said nothing of the sort;38 misleading, because it could be taken to mean that the objecting physician has a duty to initiate the transfer to a willing colleague. This was not required in any of the jurisdictions listed. All that was required is that objecting physicians transfer the patient's medical records as requested by the patient.39,40,41,42

Adoption of resolution on freedom of conscience
(19 August, 2014)

The resolution proposed by Dr. Affleck was seconded by outgoing CMA President Dr. Francescutti:

The Canadian Medical Association supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether to provide medical aid in dying as defined in CMA's policy on euthanasia and assisted suicide. (DM 5-6)35

It was argued on the floor that "current policy on euthanasia and physician-assisted suicide does not sufficiently reflect the broad spectrum of opinions on the matter held by Canadian physicians," since it prohibited physician participation in euthanasia and assisted suicide. In contrast, the most recent survey of Canadian physicians found almost 45% of physicians supported legalizing assisted suicide, about 36% favoured legalization of euthanasia, and almost 27% were willing to be involved with providing assisted suicide if the acts were legalized.43

Of course, the survey results also revealed that 55% of physicians surveyed were against legalizing assisted suicide, 64% against legalizing euthanasia, and 73% were unwilling to be involved with assisted suicide, but it appears that those citing the statistics preferred to accentuate the positive rather than the negative. It also appears that the numbers of those willing or unwilling to provide euthanasia, if available, were not reported.  Again, evaluating the returns using the standard applied to the Irish abortion referendum, an overwhelming majority of physicians remained opposed to euthanasia and assisted suicide.

Nonetheless, this approach offered some strategic advantage in view of the possibility that the Supreme Court might strike down the law, especially if the Association maintained its policy against physician participation in the procedures. In that case, the resolution would have left willing physicians free to apply the law without putting them in conflict with CMA policy. It offered the Association as a whole and individual members a way to agree to disagree, at least until the policy could be revisited if the law changed.

On the face of it, the 2014 resolution did no more than affirm the 2013 resolution supporting physicians who refuse to participate in euthanasia, while adding the promise of support for physicians wanting to do so. In the event that the procedures were legalized, the resolution appeared to commit the CMA to impartially defend both groups - nothing more. Dr. Blackmer later explained the resolution as "the other side" of conscientious objection: "almost conscientious permission."44 Even delegates opposed to euthanasia and assisted suicide would probably have been swayed by such considerations. On the other hand, voting against the resolution would have been a vote against physician freedom of conscience that would arguably have nullified the 2013 resolution in support of a right to conscientious objection. In view of all of this, it is not surprising that the outcome of the vote was 91% in favour of the resolution.

Professor Margaret Somerville, initially satisfied with the resolution, later changed her mind:

The CMA's motion, as worded and subsequently interpreted, placed its voting members in an untenable situation. Their only options were to vote either for protection of conscience and for euthanasia or against both. The possibility of voting for freedom of conscience and against euthanasia, as I believe most would, was eliminated.45

Unnoticed at the time was the fact that the CMA's promise to support physicians providing legal euthanasia and assisted suicide was unlimited.  It was not conditional upon patients having to meet certain criteria to qualify, such as decision-making capacity or having a terminal illness.

A CMA report of the meeting noted that a "straw vote" showed 70% of delegates believed that the CMA should revise its policy on euthanasia and assisted suicide, and "78% felt universal access to palliative care services would not eliminate the need for euthanasia and physician-assisted death."43  These votes were obviously in response to "strategic questions" 3 and 5 posed to the delegates in their briefing material.

. . . the CMA's promise to support physicians providing legal euthanasia and assisted suicide was . . .not conditional upon patients having to meet certain criteria to qualify, such as decision-making capacity or having a terminal illness. Tweet this

It is difficult to verify the validity of the "straw votes" as a reflection of the views of the entire CMA membership because of the contrary views expressed during the earlier extensive physician consultations and the bias evident in the information supplied to delegates. Especially important, one cannot determine whether the desire for policy change expressed in response to Strategic Question 3 indicated approval of euthanasia and assisted suicide or a preference for a policy of neutrality - as urged by those supporting the Board resolution.

CMA officials comment
(August-September, 2014)

Two days after the vote, the CMA Board confirmed the resolution on freedom of conscience in relation to assisted suicide and euthanasia.46 The confirmation of the resolution left the prohibition against physician participation untouched.  Some commentators - Professor Somerville among them - initially believed that the resolution was an affirmation of physician freedom of conscience rather than an expression of support for physician participation in assisted suicide and euthanasia.  In fact, that is exactly what Dr. Jeff Blackmer told The Catholic Register.

". . .It (the new policy) doesn't say we favour a change in the law," said Dr. Jeff Blackmer, the CMA's executive director of ethics.

The CMA stance opposing euthanasia remains in place.

"Our position is still that Canadian physicians should not participate in euthanasia or assisted suicide," Blackmer said.47

Dr. Blackmer maintained the distinction in another interview:

"One of the options would have been to say our policy is unchanged. We could say ethics trumps the law."

He noted that in Belgium, where euthanasia was legalized in 2002, the Belgian Medical Association continues to discourage physician participation in the practice.44

CMA President Dr. Chris Simpson also took this approach during an interview in the first week of September.

Simpson said he is in full agreement with Affleck - that the CMA not taking a stance one way or the other on doctor-assisted deaths by passing the motion, but only allowing Canadian physicians to follow their conscience.

"What we are doing is protecting doctors and allowing them to follow their conscience on this issue," he said.

Simpson said if a doctor does not believe in helping a patient end their life, they shouldn't have to and shouldn't be forced by law to do so.48

With respect to euthanasia and assisted suicide, he noted that some commentator had described the resolution as "a softening of the CMA's stance on doctor-assisted death."

"I prefer to think of it as a tightening of definitions when it comes to doctors and their role around end of life care. This is a very complex, controversial issue for doctors and the public at large."

"The CMA had to be careful in its use of terminology in finalizing Affleck's motion."48

This response is noteworthy for three reasons.  First: that Dr. Simpson preferred to describe what happened as "a tightening of definitions" did not amount to a denial that softening had occurred or was occurring.  Indeed, in November, 2014, looking back on the adoption of the resolution, he called it "a sea change"9 - not just a "tightening of definitions."48 Second: the term "medical aid in dying" - the only specialized term used in the text of Dr. Affleck's motion - had been defined in CMA policy six months before he brought the motion to the Board. His motion involved no "tightening of definitions."  Third: what Dr. Simpson described as being "careful in its use of terminology in finalizing Affleck's motion" must have been a reference to the care taken in drafting the supporting rationale, since the text of the motion introduced no new terminology and changed no definitions.

Comments by Dr. Simpson in an earlier interview provide more insight into his thinking. He expressed sympathy for physicians concerned by the prospect that euthanasia and assisted suicide might be legalized.

Most doctors aren't opposed to the notion of patients being able to choose how and when they die, "but they're uncomfortable with the role they're being asked to play," Simpson said.

"That discomfort comes a lot from this uncertainty: Am I going to be compelled to do it if I don't want to do it? Am I going to be asked to make decisions that I'm really uncomfortable with?"49

However, referring to some kinds of cancer and diseases that cause "uncontrollable pain" and suffering that cannot be alleviated by even the best palliative care, he said, "[W]e would all agree that if we were in that situation we would be looking for potentially other solutions"49 - an obvious if euphemistic reference to death by lethal injection or assisted suicide.

Dr. Simpson's claim that "we would all agree" to such solutions contradicted the CMA's repeated acknowledgement that there was no agreement about the acceptability of euthanasia and assisted suicide. However, it was consistent with the views he expressed in the application to intervene in Carter, as well as the arguments in favour of euthanasia and assisted suicide offered by the CMA Board in supporting Dr. Affleck's motion.

More significant was his response to the suggestion that someone other than physicians should provide euthanasia and assisted suicide. He said, "I don't think we want to be reneging on our responsibilities to serve our patients."49 This could be understood to support the view that, in some circumstances, physicians have a legal or professional obligation to kill a patient or to help a patient kill himself.

As outgoing CMA President, Board member and seconder of Dr. Affleck's motion, Dr. Louis Francescutti was well placed to anticipate what the CMA Board would do. The conclusion  that CMA Board supported physician participation in euthanasia and assisted suicide is supported by a comment he made just after Dr. Affleck's motion was accepted by the General Council. He noted that the CMA's official policy had not changed, but "it's only a matter of time."50

CMA intervention in Carter v. Canada
(August-October, 2014)

The CMA factum for its intervention in Carter was filed a week after the end of the Annual General Council.51 Counsel for the Association Harry Underwood made an oral submission during the Supreme Court of Canada hearing in mid-October, 2014, making clear that the Association was not arguing for or against the legalization of assisted suicide or euthanasia.52

He explained that physicians had been historically barred from providing euthanasia and assisted suicide because of ethical considerations, notably a physician's obligation "to secure patient well-being."

But the concept of patient well-being is capable of an interpretation which encompasses the patient's right to choose death, where the alternative is certain suffering, a choice which is also supported by the concept of patient autonomy. Thus, going back to first principles, the two approaches are each possible.53

He went on to say that the profession was divided between these approaches, "each defensible on the basis of established medical ethical considerations and compassion."  In light of this, he said, referring to the resolution passed at the General Council in August,  the Association had decided that physicians "who can square their participation with their own consciences" could provide euthanasia and assisted suicide, "without overriding the consciences" of objecting physicians.  He told the Court that CMA policy would be changed to reflect this.54

This reinforced statements in the CMA factum:

The CMA's policies are not meant to mandate a standard of care for members or to override an individual physician's conscience. (para. 9)

It is acknowledged that just moral and ethical arguments form the basis of arguments that both support and deny assisted death. The CMA accepts that, in the face of such diverse opinion, based on individuals' consciences, it would not be appropriate for it to seek to impose or advocate for a single standard for the medical profession. (para. 16)

"As long as such practices remain illegal," the factum stated, "the CMA believes that physicians should not participate in medical aid in dying,"  but, should the law change, "the CMA would support its members who elect to follow their conscience."(para. 3) 

This promise was unconditional. Consistent with the resolution sponsored by the Board in August, the factum and oral submission conveyed the message that the Association would support physicians who decided to participate in legal euthanasia or assisted suicide, no matter how broadly the Court or legislatures might cast the rules governing the procedures.  The CMA offered no suggestions concerning criteria for eligibility should the law be changed, but did tell the Court that it seemed wrong to deny assisted suicide and euthanasia to "grievously ill" (not terminally ill) patients simply because palliative care is unavailable (para. 20).

The CMA offered no suggestions concerning criteria for eligibility . . . but did tell the Court that it seemed wrong to deny assisted suicide and euthanasia to "grievously ill" (not terminally ill) patients simply because palliative care is unavailable. Tweet this

In the last half of his presentation, Mr. Underwood addressed practical concerns raised by the legalization of physician assisted suicide and euthanasia. Notably absent from his list of concerns was the fact that, as late as August, the great majority of physicians were opposed to the procedures.  However, he had earlier insisted that the law should protect both objecting and non-objecting physicians,55 a point also made in the factum (para. 28).

[N]o physician should be compelled to participate in or provide medical aid in dying to a patient, either at all, because the physician conscientiously objects . . . or in individual cases, in which the physician makes a clinical assessment that the patient's decision is contrary to the patient's best interests.  Notably, no jurisdiction that has legalized medical aid in dying compels physician participation.  (para. 27)

The distinction made in the factum (but not in the oral submission) between participation and provision is important.  In this context, "participation" is a broader term that would seem to include referral.  The CMA was well aware of longstanding and increasingly strident demands that physicians be compelled to refer for morally contested services like abortion.56 The Association was also well aware that Jocelyn Downie, one of the leading advocates for compulsory referral for abortion, had joined other experts in recommending mandatory referral for euthanasia and assisted suicide;the CMA President had cited their report57 in his affidavit.  Downie was, in fact, live-tweeting from the Supreme Court during the hearing.58

However, rather than directing the court's attention to this problem, the CMA factum suggested vaguely that the Court could "indicate that a practicable legislative regime for medical aid in dying must legally protect those physicians who choose to provide this new intervention to their patients, as well as those who do not." (para. 28)  Worse, it advised the Court that, if a physician declines to participate, "every jurisdiction that has legalized medical aid in dying has adopted a process for eligible patients to be transferred to a participating physician."(para. 27) Here the factum cited the erroneous and misleading "Schedule A" prepared for the August AGM, which could be understood to require objecting physicians to collaborate in delivering the services.

Having watched the hearing, Udo Schuklenk, one of Downie's fellow experts, criticized the joint intervention by the Protection of Conscience Project, Faith and Freedom Alliance and Catholic Civil Rights League because it argued against forcing objecting physicians to refer for euthanasia and assisted suicide.58 He did not mention the CMA submission.

CMA Board approves euthanasia and assisted suicide
(December, 2014)
Policy against euthanasia and assisted suicide reversed

In December, 2014, while the country awaited the decision of the Supreme Court in Carter, the CMA Board approved a change in Association policy on euthanasia and assisted suicide, renaming it "Euthanasia and Assisted Death."59  When the revised policy was published, the CMA issued a statement that it "and other changes to the CMA's approach to end-of-life care issues . . . codify resolutions adopted by delegates at the association's annual meeting in August."60

This was misleading. The revised policy did codify the resolution that urged the Association to support for physicians who "follow their conscience." Recall, however, that the resolution was not presented as an approval of euthanasia and assisted suicide, but as a position of neutrality concerning physician participation in the practices, a distinction emphasized by both the CMA Director of Ethics and the CMA President shortly after the General Council.

Instead, the revised policy formally approved physician assisted suicide and euthanasia, subject to legal constraints, classifying both practices as "end of life care."

There are rare occasions where patients have such a degree of suffering, even with access to palliative and end of life care, that they request medical aid in dying. In such a case, and within legal constraints, medical aid in dying may be appropriate. The CMA supports patients' access to the full spectrum of end of life care that is legal in Canada.59

Once more, this affirmation was unconditional.  The CMA Board promised to ensure patient access to "the full spectrum" of end-of-life care, including euthanasia and assisted suicide, no matter what the criteria might be. The policy did not exclude minors, the incompetent or the mentally ill, nor did it limit euthanasia and assisted suicide to the terminally ill or those with uncontrollable pain. It referred only to "patients" and "the suffering of persons with incurable diseases."  Thus, the Board committed the Association to support euthanasia and assisted suicide not only for competent adults, but for any patient group and for any reason approved by the courts or legislatures.

As noted above, the previous policy included a grave warning: For the medical profession to support such a change and subsequently participate in these practices, a fundamental reconsideration of traditional medical ethics would be required. Not having attempted such an exercise, the Board simply deleted the statement.  It also deleted a number of cautionary statements and references to concerns found in the earlier version.

Delegates had neither been presented with nor had they approved a resolution to this effect at the Annual General Council. However, by approving the resolution supporting the right of physicians to act according to their conscience, the delegates implicitly approved the accompanying rationale that, having been carefully drafted by the Board, could be understood to authorize the changes.  In bringing about the change of policy in this manner, the Board may have been following long-established practices acceptable to the members of the Association. It might, in addition, cite the "straw votes" at the General Council and the absence of general protest as evidence of support for their reversal of CMA policy.

Effects of the policy change
A  blank cheque for the Supreme Court

The CMA Board decided to lead society and shape the debate and law on assisted suicide and euthanasia.  They convinced delegates at the General Council to approve an ostensibly neutral policy that favoured provision of the procedures, which was widely seen as an overwhelming change.

In its application to intervene in Carter, the Board assured the Supreme Court of Canada that CMA policy against euthanasia and assisted suicide was "not a certainty" nor "perpetually frozen in time," that it was "not static and can change," and reaffirmed this in its intervention.  It suggested no limits to circumstances under which euthanasia and assisted suicide might be provided, but did tell the Court  that it seemed wrong to refuse to provide the services simply because palliative care was unavailable.  Finally, it implied that the Court could count on the cooperation of the Association, no matter what their ruling might be.

Finally, the Board reversed CMA policy against physician participation, deleting statements of concern that might have impeded legalization, and unconditionally approved euthanasia and assisted suicide as legitimate forms of medical treatment that should be provided "without undue delay"to persons suffering from incurable diseases - should the law change.  It published the new policy while the Court was considering its ruling in Carter, probably with a reasonable expectation that the Court would consider it in its decision - which it did.

By doing all of this, the CMA Board effectively wrote a blank cheque for the Supreme Court of Canada to legalize euthanasia and physician assisted suicide on any terms acceptable to the judges . . . Tweet this

By doing all of this, the CMA Board effectively wrote a blank cheque for the Supreme Court of Canada to legalize euthanasia and physician assisted suicide on any terms acceptable to the judges, assured that the Association would accept and cooperate with legalization on whatever terms the Court set.

A professional obligation to kill

By formally approving physician assisted suicide and euthanasia rather than adopting a neutral position, and by committing the CMA to support patients's access to physician assisted suicide and euthanasia under conditions set by law, the Board implicitly agreed that, in some circumstances, physicians have a professional obligation to kill patients or to help them kill themselves. 

Further, by classifying euthanasia and assisted suicide as "end of life care," the Board made participation in euthanasia and assisted suicide normative for the medical profession. This effectively mandated a standard of care for its members, something the Association had told the Supreme Court the CMA did not mean to do. 

Once legalized, euthanasia and assisted suicide became therapeutic medical services. . . . the debate in Canada has been largely about whether . . . physicians and institutions should be allowed to refuse to provide or facilitate homicide and suicide.  Tweet this

The new policy also imposed a single ethical standard upon the entire profession, something the CMA had told the Supreme Court would be inappropriate.  Once legalized, euthanasia and assisted suicide became therapeutic medical services.61,62 Refusing the services in the circumstances set out by law became an exception to professional obligations requiring justification or excuse.  This is why, since Carter, the debate in Canada has been largely about  whether or under what circumstances physicians and institutions should be allowed to refuse to provide or facilitate homicide and suicide. 

A limit on refusing to kill

It also explains an important caveat the Board added to the 2014 policy's reference to freedom of conscience:

A physician should not be compelled to participate in medical aid in dying should it be become legalized. However, there should be no undue delay in the provision of end of life care, including medical aid in dying.59

Notice that, apart from mere legality, the policy placed no limits on criteria for euthanasia and assisted suicide, and no limits on what non-objecting physicians might agree to do, but implied that freedom of conscience for objecting physicians could be limited in order to ensure timely patient access to the services.

Other foreseeable unforeseen consequences

All of the preceding effects of changing CMA policy against euthanasia and assisted suicide might have been foreseen by the CMA Board had it not been so intent upon changing it within the time frame imposed by the Carter case.  Its  lack of foresight began to become evident on the eve of Supreme Court decision in Carter

Just before the ruling, CMA President Dr. Chris Simpson said there was "a lot of moral angst" among physicians15 about what conditions or kinds of illness would justify the procedures14,18 what kind of suffering - physical, psychological or both - should make someone eligible,18 and how terminal illness should be defined.14 Among his other questions: should assisted suicide and euthanasia be offered only to competent adults, or also to the mentally ill, or clinically depressed18 or those with dementia?14 Should substitute decision makers be able to ask for euthanasia or assisted suicide on behalf of someone unable to do so?14,15,18 

Just after the ruling, Dr. Simpson said that he had not anticipated that the judges would permit euthanasia and assisted suicide for any "grievous and irremediable medical condition" rather than terminal illness.61  Dr. Blackmer acknowledged that physicians who were willing to provide euthanasia in cases of terminal illness might be less willing to do so for suffering caused by other medical conditions.63 

A few days later, Dr. Blackmer expressed concern about the eligibility criteria set by the Court.  Blindess is "irremediable," he noted, and said that the Carter decision would probably allow euthanasia and assisted suicide for chronic depression and  spinal cord injuries.

My feeling is that there would be much more support for a tighter framework in terms of requiring that the patient be terminal. This is not to minimize in any way the suffering of people who do not have a terminal illness, it is just that for a lot of doctors, this opens too many doors and generates too many questions. . . My conversations with doctors to date indicate more of a comfort level with tight parameters.64

However, he believed that the CMA "might have very little ability" to influence how the Carter criteria would be developed64 - something the CMA Board might usefully have considered when planning its intervention and before embarking upon its plan to change CMA policy.

Dr. Blackmer also complained that the term "grievous" is entirely subjective and "is not a technical medical term."64  Expanding upon this a few months later, he referred to "some angst and discomfort" among physicians about the breadth of the Carter criteria.

"I've now given dozens or hundreds of presentations on this and every time I speak about it and I ask doctors, ‘Look, have any of you ever told a patient that you're really sorry but their condition is grievous?' Of course, no one ever has," Blackmer said. "No doctor in Canadian history, I don't think, has ever told a patient that they're suffering from a ‘grievous" condition. So none of us know what that means."65

All of these complaints are astonishing.  Neither the CMA's factum nor its oral submission at the Supreme Court of Canada suggested that assisted suicide or euthanasia should be limited to patients with terminal illnesses, nor, in its intervention, did the CMA suggest any criteria whatever as relevant for the purpose of determining eligibility for the procedures.  The revised policy, Euthanasia and Physician Assisted Death, did not exclude minors, the incompetent or the mentally ill as candidates for assisted suicide or euthanasia, nor did it limit its application to the terminally ill or those with uncontrollable pain. It referred directly only to "patients" and "the suffering of persons with incurable diseases." 

The question put to the courts by the plaintiffs from the very beginning in 2011 was never about terminal illness, but about "grievous and irremediable illness."66 The term was defined in the trial court ruling, where it was used extensively,67 and it appeared again in the first sentence of the appellants' factum filed in the Supreme Court of Canada.68 Finally, the CMA factum, "reviewed and approved by several senior CMA elected officials,"45 stated that it seemed wrong to deny assisted suicide and euthanasia to "grievously ill" patients just because palliative care is unavailable (emphasis added)69 - yet Dr. Blackmer later claimed that "none of us know what that means."67

In sum, all of the concerns voiced by Dr. Simpson and Dr. Blackmer after the Carter ruling existed when the CMA intervened in the case, but the CMA Board did not raise them. Instead, it worked steadily to remove or minimize obstacles that might have impeded legalization of physician assisted suicide and euthanasia. The legal criteria set for euthanasia and physician assisted suicide by the Supreme Court of Canada were actually more restrictive than anything the CMA had proposed in its intervention or included in its new policy. 

Arguably, the CMA Board contributed substantially to the legalization of physician suicide and euthanasia on the broad terms set by the Court, and so were themselves, in large measure, responsible for the  "angst and discomfort" and profound unease of Canadian physicians following the ruling. 

Arguably, the CMA Board contributed substantially to the legalization of physician suicide and euthanasia on the broad terms set by the Court, and so were . . . responsible for the 'angst and discomfort'and profound unease of Canadian physicians . . .   Tweet this


Notes

1.    Murphy S. World Medical Association urged to change policy against euthanasia, assisted suicide: Canadian & Royal Dutch Medical Association want censure dropped.  Protection of Conscience Project, 13 February, 2018.

2.    Blackmer J.  Assisted Dying and the Work of the Canadian Medical Association.  World Medical Ass J. 2017 Oct; 63(3):6-9 (Accessed 2018 Sep 10).

3.  Carter v. Canada (Attorney General) 2012 BCSC 886 [Carter-BCSC] (Accessed 2018 Sep 10).

4.  Eggertson L. CMA delegates defer call for national discussion of medically assisted death. CMAJ, September 17, 2013, 185 (13) E623-624 (Accessed 2018 Sep 10).

5.  Picard A. Fears prevail during CMA policy debate on euthanasia. Globe and Mail, 21 August, 2014 (Accessed 2018 Sep 10).

6.  Canadian Medical Association. Resolutions Adopted,146th Annual Meeting of the Canadian Medical Association (19-21 August 2013 - Calgary, AB) (Accessed 2018 Sep 10).

7.  Carter v. Canada (Attorney General) 2013 BCCA 435 [Carter-BCCA] (Accessed 2018 Sep 10).

8.  Carter-BCCA, para. 248.

9.  Martin S. The story behind the CMA's overwhelming change on assisted death.  The Globe and Mail, 6 November, 2014 (Accessed 2018 Sep 10).

10.  Geddes J.  Interview: The CMA's president on assisted dying: Dr. Chris Simpson calls for a process to set new rules.  Macleans, 6 February, 2015  (Accessed 2018 Sep 10). Full transcript by Protection of Conscience Project [Geddes Full Transcript], lines 16-22.

11.  Dr. Chris Simpson (CMA President): "I was not surprised, we were not surprised. Perhaps the unanimous decision was a little bit of a surprise. But, at the CMA, we've been, we've been preparing for this eventuality for the last year and a half or two years."  Geddes Full Transcript, lines 4-7.

12.   Dr. Blackmer: "I think we're looking at the possibility that the court will refer this back to the lawmakers . . . They could suggest some framework from the bench that we might want to be in a position to comment on fairly quickly. . . We're preparing for all eventualities. . ." Kirkey S. Canadian doctors preparing for 'all eventualities' in case top court strikes down ban on assisted suicide. National Post, 21 December, 2014 (Accessed 2018 Sep 10).

13.  In the Supreme Court of Canada (On Appeal from the Court of Appeal of British Columbia) Affidavit of Dr. Chris Simpson, Motion for Leave to Intervene by the Canadian Medical Association (5 June, 2014) [Simpson Affidavit] para. 56 (Accessed 2018 Sep 10).

14.  "Should the justices rule the law on assisted death and euthanasia is unconstitutional and needs amendment, 'we feel pretty strongly that we want to be at the table' to help draft a new law and guidelines for physicians and patients, CMA president Dr. Chris Simpson said Thursday."  Ubelacker S.  Doctors ready for Supreme Court decision on assisted suicide.  CTV News, 5 February, 2015 (Accessed 2018 Sep 10).

15.  Dr. Chris Simpson (CMA President): "We'll be very interested in having a lot of input into the operational details."  Grant K.  Canadian doctors drafting new rules in case doors open to assisted suicide.  Globe and Mail, 5 February, 2015 (Accessed 2018 Sep 10).

16.  "President Dr. Chris Simpson said the CMA believes it must play a key role in helping to draft the legislation that is needed to make physician-assisted dying available."  Branswell H. Canadian MDs, many hesitant about assisted death, assessing Supreme Court ruling. Times Colonist, 6 February, 2018 (Accessed 2018 Sep 10).

17.  Dr. Chris Simpson (CMA President): "Now that the decision has come down, we want to really take a leadership role in helping to craft the legislation and the rules and regulation around it." Hume J.  Supreme Court strikes down ban on assisted suicide.  Toronto Sun, 6 February, 2015 (Accessed 2018 Sep 10).

18.  Dr. Chris Simpson (CMA President): "[W]e're going to need to hit the ground running if we want to lead and do this well." Kirkey S.  Helping suffering patients die may be doctor's most humane option, Canadian Medical Association says.  National Post, 4 February, 2015 (Accessed 2018 Sep 10).

19.  Dr. Chris Simpson (CMA President): "[T]hat's exactly what we'll be seeking: is some mechanism for, for us to have a prominent role in the, in the crafting of the new rules and regulations and, and legislation."  Geddes Full Transcript, lines 150-152.

20.  "The CMA is well positioned to continue to play a leadership role in the debate around end-of-life care in Canada," said Simpson. Rich P.  CMA positioned to take lead role in crafting new regulations.  Canadian Medical Association, 6 February, 2018 (Accessed 2018 Sep 10).

21.  Dr. Chris Simpson (CMA President): "This will be really historic for Canada, and we really want to make sure we get it right." Stone L. 'Historic' assisted suicide ruling could make Parliament draft new laws. Global News, 6 February, 2015 (Accessed 22018 Sep 10).

22.  Dr. Chris Simpson (CMA President): "It's a really historic moment and I'm very mindful of, of the role that physicians have to play and . . . I'm really, really proud of how the CMA has handled this over the last two or three years."  Geddes Full Transcript, lines 160-162.

23.  Canadian Medical Association. CMA Policy: Euthanasia and Assisted Suicide (Update 2014). (Accessed 2018 Sep 10).

24.  Canadian Medical Association. End-of-Life Care: A National Dialogue (June, 2014) [CMA Public Consultation] p. 1 (Accessed 2018 Sep 10).

25.  CMA Public Consultation, p. 1, 17.

26.  CMA Public Consultation, p. 17.

27.  Canadian Medical Association. End-of-Life Care: A National Dialogue. CMA Member Consultation Report (July, 2014) [CMA Member Consultation] p. 9 (Accessed 2018 Sep 10).

28.  CMA Member Consultation, p. 2.

29.  CMA Member Consultation, p. 11.

30.  Henley J.  Irish abortion referendum: yes wins with 66.4% – as it happened.  The Guardian, 26 May, 2018 (Accessed 2018 Sep 10).

31.  McDonald H, Graham-Harrison E, Baker S.  Ireland votes by landslide to legalise abortion. The Guardian, 26 May, 2018 (Accessed 2018 Sep 10).

32.  Booth W, Stanley-Becker I.  Ireland votes to overturn its abortion ban, 'culmination of a quiet revolution,' prime minister says.  The Washington Post, 26 May, 2018 (Accessed 2018 Sep 10).

33.  Blackmer J, Francescutti LH. Canadian Medical Association Perspectives on End-of-Life in Canada. HealthcarePapers 2014 April; 14(1):17-20 doi:10.12927/hcpap.2014.23966.

34.  Anselmi E. Yk doc key in assisted suicide ruling: Dr. Ewan Affleck instrumental in penning resolution considered by Supreme Court. Northern News Service, 13 February, 2015 (Accessed 2018 Sep 10).

35.  Canadian Medical Association. 147th General Council Delegates' Motions: End-of-Life Care: Motion DM 5-6 (Accessed 2018 Sep 10).

36.  Canadian Medical Association. General Council Motions - 2014 Procedures and Guidelines: Motion Development, p. 2, point 6 (Accessed 2018 Sep 10).

37.  Canadian Medical Association. Reports to the General Council. CMA 147th Annual General Meeting, August 17-20, 2014. Appendix 2 -Care at the End of Life (Backgrounder - Strategic Session 2) A2-1 to A2-8 (Accessed 2018 Sep 10).

38.  Vermont Statutes Title 18: Health, Chapter 113: An act relating to patient choice and control at end of life (Accessed 2018 Sep 10).

39.   Belgium: "At the request of the patient or the person taken in confidence, the physician who refuses to perform euthanasia must communicate the patient's medical record to the physician designated by the patient or person taken in confidence." The Belgian Act on Euthanasia (2002) Chapter VI: Special Provisions, Section 14. Protection of Conscience Project.

40.  Luxembourg: "A physician who refuses to comply with a request for euthanasia or assisted suicide is required, at the request of the patient or support person, to communicate the patient's medical record to the doctor appointed by him or by the support person." Legislation Regulating Palliative Care, Euthanasia and Assisted Suicide, Art. 15. Protection of Conscience Project.

41.  Washington: "If a health care provider is unable or unwilling to carry out a patient's request under this chapter, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider." Washington Death With Dignity Act, RCW 70.245.190(1)d. Protection of Conscience Project.

42.  Oregon: "If a health care provider is unable or unwilling to carry out a patient's request under ORS 127.800 to 127.897, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider." Death With Dignity Act, ORS 127.885 s.4.01(4). Protection of Conscience Project.

43.  Rich P.  Physician  perspective on end-of-life issues fully aired. Canadian Medical Association, 19 August, 2014 (Accessed 2018 Sep 10).

44.  Kirkey S. Canadian doctors want freedom to choose whether to help terminal patients die: CMA to revisit issue of doctor-assisted death after delegates pass motion supporting physician's right to 'follow their conscience'. canada.com, 19 August, 2014 (Accessed 2018 Sep 10).

45.  Somerville S. There's no "mushy middle" on euthanasia. Mercatornet, 2 October, 2014 (Accessed 2018 Sep 10).

46.  Canadian Medical Association. Resolutions Adopted, 147th Annual Meeting of the Canadian Medical Association Aug. 18-20, 2014 – Ottawa, ON. (Accessed 2018 Sep 10).

47.  Swan M. Medical association vows to protect conscience rights. The Catholic Register,
27 August, 2014 (Accessed 2018 May 26).

48.  McFadden J. Yk docs bring motions on doctor-assisted death: Canadian law on euthanasia could be overturned by next month. Northern News Services, 8 September, 2014. (Accessed 2018 Sep 10).

49.  Kirkey S. Doctor-assisted death appropriate only after all other choices exhausted, CMA president says.  canada.com, 26 August, 2014 (Accessed 2018 Sep 10).

50.  Picard A.Canadian Medical Association softens stand on assisted suicide. The Globe and Mail, 19 August, 2014 (Accessed 2018 Sep 10).

51.  In the SCC on appeal from the BCCA, Factum of the Intervener, The Canadian Medical Association (27 August, 2014) [CMA Factum].

52.  Murphy S. Re: Joint intervention in Carter v. Canada: Selections from oral submissions (Supreme Court of Canada, 15 October, 2014). Harry Underwood (Counsel for the Canadian Medical Association) [CMA Oral Submission] Protection of Conscience Project.  See the webcast of the submission from 225:53/491:20 to 236:13/491:20 at the Supreme Court of Canada (Accessed 2018-09-11).

53.  CMA Oral Submission, 228:08/491:20.

54.  CMA Oral Submission, 228:32/491:20.

55.  "Consistent with the matter as being a matter of conscience, the law should offer protection to those physicians who choose to participate in physician assisted death if it is legalized, and those who do not." CMA Oral Submission, 229:29/491:20.

56.  Murphy S.  "NO MORE CHRISTIAN DOCTORS." Appendix "F": The Difficult Compromise - Canadian Medical Association, Abortion and Freedom of Conscience.

57.  Schuklenk U, van Delden JJM, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making. [Internet] Royal Society of Canada. 2011 Nov, p. 69, 101 (Accessed 2018 Sep 10).

58.  Schuklenk U. Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation.  Udo Schuklenk's Ethx Blog, 16 October, 2014 (Accessed 2018 Sep 10).

59.  Canadian Medical Association. Policy: Euthanasia and Assisted Death (Update 2014) (Accessed 2018 Sep 10).

60.  Rich P. CMA updates assisted dying policy. Canadian Medical Association, 9 January, 2015 (Accessed 2018 Sep 10).

61.  Doctor-assisted suicide a therapeutic service, says Canadian Medical Association.  CBC News, 6 February, 2016 (Accessed 2018 Sep 10).

62.  The Canadian Medical Association describes euthanasia and physician assisted suicide as "legally permissible medical service[s]."  Canadian Medical Association. Medical Assistance in Dying (May, 2017) (Accessed 2018 Sep 10).

63.  Ballingall A.  Assisted death: How to weigh doctors' rights with right to die?  Canada's medical circles abuzz with debate over how to balance newly recognized right to assisted death with doctors' right not to provide it.  The Star, 7 February, 2015 (Accessed 2018 Sep 10).

64.  Santi N.  From Courtroom to Bedside - A Discussion with Dr. Jeff Blackmer on the Implications of Carter v. Canada and Physician-Assisted Death.  UOJM Volume 5, Issue 1, May 2015 (Accessed 2018 Sep 10).

65.    Kirkey S.  Doctors' group proposes assisted death protocols in absence of rules from government.  National Post, 29 June, 2015 (Accessed 2018 Sep 10).

66.    In the BCSC, Between Lee Carter, Hollis Johnson, Dr. William Shoichet, and the British Columbai Civil Liberties Association and Gloria Taylor, Plaintiffs, And Attorney General of Canada, Amended Notice of Civil Claim (15 August, 2011)

67.  Carter-BCSC, para. 24 (Accessed 2018 Sep 10).

68.   In the SCC on appeal from the BCCA, Factum of the Appellants, Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor (13 May, 2014) (Accessed 2018 Sep 10).

69.   CMA Factum, para. 20.

 

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