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.

Canadian Medical Association and euthanasia and assisted suicide in Canada

Critical review of CMA approach to changes in policy and law

Sean Murphy*

Abstract

English | Français | Español | Deutsche | Português | bahasa Indonesia


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. [Full Text]

Professor David Oderberg joins Protection of Conscience Project Advisory Board

News Release   

For immediate release

Protection of Conscience Project

The Protection of Conscience Project welcomes David S. Oderberg, Professor of Philosophy at the University of Reading, UK to the Project Advisory Board. Professor Oderberg joined the university after completing his doctorate at Oxford in the early 1990s. He is the author of many articles in metaphysics, ethics, philosophy of religion, philosophy of science, and other areas. He is also the author of several books including Moral Theory and Applied Ethics (Blackwell, 2000) as well as co-editor of collections in ethics such as Human Values: New Essays on Ethics and Natural Law (Palgrave, 2004) and Human Lives: New Essays on Non-Consequentialist Bioethics (Palgrave, 1997).

Prof. Oderberg has been working on freedom of conscience in health care over the last few years, with a recent article in the Journal of Medical Ethics on co-operation, and a forthcoming policy monograph to be published by the Institute of Economic Affairs. He is Editor of Ratio, an international journal of analytic philosophy, and Senior Fellow of the Higher Education Academy. In 2013 he delivered the Hourani Lectures in Ethics at SUNY Buffalo, and has a book forthcoming based on those lectures, to be called The Metaphysics of Good and Evil. [Faculty Profile] [Website]

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
protection@consciencelaws.org


The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity. 

 

 

Protection of Conscience Project welcomes new advisor from Scotland

News Release
For immediate release

Protection of Conscience Project

The Protection of Conscience Project welcomes Dr. Mary Neal, PhD, LLB Honours, LLM to the Project Advisory Board. Dr. Neal is Senior Lecturer in Law, University of Strathclyde, Glasgow.  She researches, writes, and teaches in the fields of Healthcare Law and Bioethics, focusing on beginning and end-of-life issues.  In 2014-15, she was Adviser to the Scottish Parliamentary Committee scrutinising the Assisted Suicide (Scotland) Bill, and she is a current member [2018] of the British Medical Association’s Medical Ethics Committee. She has published a wide range of academic articles and blogs on a range of topics including, most recently, conscientious objection by healthcare professionals; the nature of ‘proper medical treatment’; the role of the emotions in end-of-life decision-making; and the conceptual structure and content of human dignity.

Dr. Neal was a co-editor of and contributor to the recent volume Ethical Judgments: Re-writing Medical Law (Hart, 2017). Her works-in-progress include articles and book chapters on conscientious objection; the idea of ‘vulnerability’ in healthcare; physician-assisted suicide; and the role of dignity in human rights discourse. Among other research activities, Dr. Neal is currently leading two funded projects relevant to the issue of conscientious objection in healthcare. One is a British Academy/Leverhulme-funded project exploring conflicts between personal values and professional expectations in pharmacy practice. The other is a multi-disciplinary network of academics and healthcare professionals (the ‘Accommodating Conscience Research Network’, or ‘ACoRN’), funded by the Royal Society of Edinburgh, and beginning with a series of roundtables exploring various aspects of conscientious objection in healthcare. Dr Neal is also a spokesperson for the Free Conscience campaign supporting the Conscientious Objection (Medical Activities) Bill currently before the UK Parliament.[Faculty Profile]

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
protection@consciencelaws.org


The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity. 

Canadian court rules that state can compel participation in homicide and suicide

News Release

For immediate release

Protection of Conscience Project

Three judges of the Ontario Superior Court of Justice Divisional Court have unanimously ruled that, notwithstanding religious convictions to the contrary, Ontario  physicians can be forced to help patients access any and all services and procedures, including euthanasia and assisted suicide.

“In the end,” observed Project Administrator Sean Murphy,  “the ruling effectively gives the state the power to compel citizens to be parties to homicide and suicide, even if they believe it is wrong to kill people or help them kill themselves.”

The Protection of Conscience Project jointly intervened in the case with the Catholic Civil Rights League and Faith and Freedom Alliance on the issue of freedom of conscience.  The court acknowledged the submission, but explicitly limited its ruling to the exercise of freedom of religion.  It did not address freedom of conscience.

The court approved the reasoning of the College of Physicians and Surgeons of Ontario, the state medical regulator.  The College argued that “physicians must be prepared to take positive steps to facilitate patient access” to euthanasia and assisted suicide, and that there is “no qualitative difference” between euthanasia and “other health services.”

With respect to options of objecting physicians, the court observed that they are free to change their field of practice in order to avoid moral conflicts.  The judges added that those who fail to do so are to blame for any psychological distress they might experience if compelled to violate their convictions.  It appears that they were unconcerned that this might further reduce the number of family and palliative care physicians, noting that there was “no evidence” that coercive policies would adversely affect physicians “in any meaningful numbers.”

Dr. Shimon Glick, advisor to the Project and Professor Emeritus of the Faculty of Health Sciences at Ben Gurion University of the Negev in Israel, described the ruling as “sad.”  Commenting on the decision, Project Advisor Professor Roger Trigg of Oxford said, “once the perceived interests of the State override the moral conscience of individuals  – and indeed of professionals- particularly in matters of life and death, then we are treading a slippery slope to totalitarianism.”

“Even the first steps- that may not seem important to some,” he warned, “are taking us in that direction.”

Professor Trigg’s warning was echoed by Professor Abdulaziz Sachedina, a leading Islamic scholar and philosopher who also serves on the Project Advisory Board.  Professor Sachedina asked, “Are we  going to submit to “totalitarian ethics” reflected in such court decisions, making suicide a tempting option without any regard to conscientious objection?”

The decision concluded legal proceedings launched jointly by five Ontario physicians, the Christian Medical and Dental Society of Canada, Canadian Physicians for Life, and the Canadian Federation of Catholic Physicians’ Societies.  They are considering the possibility of appeal.

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
E-mail: protection@consciencelaws.org


The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or acceptability of morally contested procedures. Since 1999, the Project has been supporting health care workers who want to provide the best care  for their patients without violating their own personal and professional integrity. 

 

 

Physician, expert in Jewish medical ethics joins Protection of Conscience Project Advisory Board

News Release

For immediate release

Protection of Conscience Project

Professor Shimon Glick, MD,  of the Faculty of Health Sciences, Ben Gurion University of the Negev, Beer Sheva, Israel, has joined the Protection of Conscience Project Advisory Board.

Professor Glick was born in Brooklyn in 1932 and received his medical training in the United States, specializing in internal medicine and endocrinology. He immigrated to Israel in 1974 to become a founding member of the Faculty of Health Sciences (FOHS) at Ben Gurion University of the Negev and head of the Internal Medicine Department at Soroka Medical Center. He and his colleagues instituted the practice of “early clinical exposure,” insisting that students meet patients in their first week at medical school, even before beginning traditional academic studies. “The students don’t just treat patients. They talk to them and learn what it’s like to be sick,” he explains. Students also take their medical or Hippocratic oath when they begin their studies, rather than taking the oath when they finish.

Professor Glick became chair of Israel’s first Internal Medicine Division and served as Dean of the FOHS between 1986 and 1990. During his tenure, he played a key role in formulating the admissions process for medical students – a process based not only on achievements but also the candidates’ character. Professor Glick headed the Prywes Center for Medical Education and the Jakobovits Center for Jewish Medical Ethics, two domains that were assigned a central role in the professional education of students in the Faculty. He was also instrumental in the instruction on doctor-patient communications for first year medical students. In addition, Professor Glick has served as ombudsman for Israel’s Ministry of Health. He is widely recognized as an expert in medical ethics, with a particular focus on Jewish medical ethics, and is at the forefront of the efforts to bring a Jewish perspective to bear on the most important issues of modern bioethics.

In 2014, in recognition of his contributions to medical education and practice, Professor Glick received a Lifetime Achievement Award as part of the Nefesh B’Nefesh Bonei Zion Awards. The award recognizes outstanding Anglo Olim – veteran and recent – who encapsulate the spirit of modern-day Zionism by contributing in a significant way towards the State of Israel.

Professor Glick is blessed with 46 grandchildren and (at last count) 77 great grandchildren.  He continues to teach at the Joyce and Irving Goldman Medical School and the Medical School for International Health (MSIH).  [Faculty Profile]

 

Project comment on Quebec euthanasia statistics

News Release

For immediate release

Protection of Conscience Project

LifeSite News has published an article concerning Quebec euthanasia statistics collated by the Project.

During the interview that led to the publication of the article, the Project Administrator expressed concern that a significant increase in the volume of cases in the last half of 2016 could increase pressure on physicians and other health care workers who do not wish to participate in the procedure.  Such pressure was generated across Canada by the exponential increase in the number of abortions following liberalization of the abortion law in 1969, from under 300 in eleven years[1] to over 11,000 in the first year after the change in the law.[2]  The number of euthanasia and assisted suicide cases in the first year of legalization seems unlikely to exceed 20%  of that number, but this is still sufficient to warrant concern about pressure on objecting health care workers.

The statistical returns disclose some wide differences between different regions or reporting agencies, and sometimes between reporting agencies in the same administrative region.  For example: the number of euthanasia requests per 100,000 population is reported to be much higher in the Quebec City area than in the rest of the province, while the number of euthanasia requests per 100,000 palliative patients reported in Lanaudiere and Laval is much higher than in the Montreal Region.  Euthanasia is reported to be provided per 100,000 population in the Quebec City area at a rate three times that of Montreal.

The Administrator explained that the statistics were primarily useful in raising important questions about the reasons for such variations or trends, such as differences in the quality or accessibility of palliative care or the nature of patient illnesses.

Note

1. Waring G. “Report from Ottawa.” CMAJ Nov. 11, 1967, vol. 97, 1233 (Accessed 2016-06-15).

2. In 1970, the first year under the new rules, there were more than 11,000. In 1971 there were almost 39,000. “Therapeutic abortion: government figures show big increase in ‘71.” CMAJ May 20, 1972, Vol. 106, 1131 (Accessed 2016-06-15)

[Release revised 2017-03-14]

Protection of Conscience Project to intervene in lawsuit against state medical regulator

News Release

For immediate release

Protection of Conscience Project

The Protection of Conscience Project has been granted joint intervener status in a constitutional challenge to policies of the College of Physicians and Surgeons of Ontario.

The Project is intervening jointly with the Catholic Civil Rights League (CCRL) and Faith and Freedom Alliance (FFA) in a lawsuit against the College launched by Ontario physicians and national physician organizations.

The joint intervention will defend freedom of conscience in the face of demands by the Ontario College of Physicians that physicians who refuse to kill patients or help them kill themselves must send them to a colleague willing do so.

“Unlike the CCRL and the FFA, the Project does not take a position on the acceptability of euthanasia or assisted suicide,” said Sean Murphy, Project Administrator.

“However, all three groups agree that those who object to the practices for moral, ethical or religious reasons should not be forced to provide or collaborate in them.”

The intervention will attempt to assist the court in defining a principled approach to the nature and scope of freedom of conscience.

Federal government policy a factor

The deliberate decision of the federal government to support coerced participation in homicide and suicide contributed to the Project’s decision to intervene.

“The federal government knew full well that the Ontario College was threatening to punish physicians who refuse to be parties to euthanasia and assisted suicide when it introduced Bill C-14 to set the groundrules for the procedures,” said Murphy.

“It could have prevented coercion by exercising its jurisdiction in criminal law. It could have made it a crime to force someone to be a party to homicide or suicide. It was repeatedly asked to do so. It steadfastly refused.”

Instead, Murphy said, “the Government of Canada chose to enable coercion, and to defend its support for coercion as ‘cooperative federalism.’”1

In contrast, the Project insists upon a foundational principle of democratic civility: that no one and no state institution may compel unwilling citizens to be parties to killing other people. Neither the state nor its agents nor others in positions of power and influence can legitimately order unwilling citizens to become parties to homicide and suicide, and punish them if they refuse.

The case is currently set for a hearing in mid-June.

Contact:
Sean Murphy, Administrator
Protection of Conscience Project
protection@consciencelaws.org


Notes

  1.  Minister of Justice Jody Wilson-Raybould, House of Commons Debates, Vol. 148, No. 055, 1st Session, 42nd Parliament, 13 May, 2016, p. 3312 (10:55)

Therapeutic Homicide and Suicide in Canada:Collaboration, Conscription, Coercion and Conscience

Presented at the Central Oregon Right to Life Conference
Redmond, Oregon
10 September, 2016

Sean Murphy*

Preface

Thank you for the invitation to make this presentation on behalf of the Protection of Conscience Project.

Rather than use our time to talk about the Project, I have made background information and materials available in the display. After the presentation, I can answer questions or speak privately with people who would like to know more.

The presentation today is about therapeutic homicide and suicide in Canada. More specifically it is about expectations of collaboration, conscription of health care workers, and ongoing attempts to compel participation in morally contested services. [Full text]

 

Submission to the Parliamentary Inquiry into Freedom of Conscience in Abortion Provision (United Kingdom)

. . . Abortion has developed technologically and now includes medical and surgical methods, but, generally speaking, remains the deliberate killing of a developing human individual at some point between implantation in the uterus and birth, either directly or by premature delivery intended to cause death. The moral arguments against abortion have been refined and somewhat expanded since 1967, but their focus is substantially unchanged. . .
Project Submission