L’euthanasie au Canada: une mise en garde

Rene Leiva, Margaret M. Cottle, Catherine Ferrier, Sheila Rutledge Harding, Timothy Lau, Terence McQuiston, John F. Scott*

Nous sommes des médecins canadiens consternés et concernés par les impacts – sur les patients, sur les médecins, sur la pratique médicale – de l’implantation universelle de l’euthanasie dans notre pays, définie comme un « soin de santé » auquel tous les citoyens ont droit (conditionnellement à des critères ambigus et arbitraires). Beaucoup d’entre nous sont si touchés par la difficulté de pratiquer sous ces nouvelles contraintes prescrites que nous pourrions être forcés, pour des raisons d’intégrité et de conscience professionnelle, d’émigrer ou de se retirer complètement de notre pratique. Nous sommes tous profondément inquiets du futur de la médecine au Canada. Nous croyons que ce changement sera non seulement nuisible à la sécurité des patients, mais également à la perception essentielle par le public – et par les médecins eux-mêmes – que nous sommes réellement une profession dédiée seulement à la guérison et au mieux-être. Nous sommes donc très inquiets des tentatives visant à convaincre l’Association Médicale Mondiale (AMM) de modifier sa position qui s’oppose à la participation des médecins à l’euthanasie et au suicide assist . . . . Continuer la lecture dans le World Medical Journal en anglais | Français

Euthanasia in Canada: a Cautionary Tale

Rene Leiva, Margaret M. Cottle, Catherine Ferrier, Sheila Rutledge Harding, Timothy Lau, Terence McQuiston, John F. Scott*

We are Canadian physicians who are dismayed and concerned by the impact  – on patients, on doctors, on medical practice – of the universal implementation, in our country, of euthanasia defined as medical “care” to which all citizens are entitled (subject to the satisfaction of ambiguous and arbitrary qualifying criteria). Many of us feel so strongly about the difficulty of practicing under newly prescribed constraints that we may be forced, for reasons of personal integrity and professional conscience, to emigrate or to withdraw from practice altogether. All of us are deeply worried about the future of medicine in Canada. We believe this transformation will not only be detrimental to patient safety, but also damaging to that all-important perception by the public  – and by physicians themselves – that we are truly a profession dedicated to healing alone. Thus, we are alarmed by attempts to convince the World Medical Association (WMA) to change its policies against physician participation in euthanasia and assisted suicide. . . Continue reading in the World Medical Journal | Français

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]

World Medical Association to consider policy changes on abortion, euthanasia, assisted suicide

Debate planned for ethics conference in October in Iceland

Sean Murphy*

Following a meeting of the WMA Council in Riga, Latvia, the WMA issued a statement noting that a revised version of the WMA abortion policy would be presented for approval at the WMA annual General Assembly in Reykjavik, Iceland.

In addition, the WMA has announced that there will be a further “open debate” on changing the Association’s policy against physician participation in euthasnasia and assisted suicide.  The debate will occur during a WMA conference on medical ethics taking place at the same time and place.  Formal presentations on euthanasia and assisted suicide will be given on 4 October, 2018, but informal discussions among delegates are likely to be important.  The debate appears to be a consequence of lobbying by the Canadian and Royal Dutch Medical Associations to convince the WMA to drop its condemnation of the practices

It is not clear whether or not WMA members appreciate the relationship between abortion policy and euthanasia policy.  Compulsory referral for abortion is essentially a dress rehearsal for compulsory referral for euthanasia and assisted suicide, something clearly demonstrated in Canada.  Accusations of “patient abandonment” formerly aimed at those refusing to refer for abortion1 are now, in addition, being levelled at those who refuse to refer patients to someone willing to kill them or help them commit suicide.2

In 2011, a Royal Society of Canada panel of experts chaired by Udo Schuklenk  recommended legalization of assisted suicide and euthanasia.3  The experts insisted that health care professionals unwilling to provide euthanasia help patients commit suicide must refer them to someone willing to do so.4 This was justified, they said, because it was agreed that objectors are obliged to refer for “reproductive health services.”5  It really was not agreed: the Canadian Medical Association had, in fact, rejected this claim five years earlier6 after it was made by Jocelyn Downie,7 one of Schuklenk’s colleagues on the Royal Society Panel.

By 2015 Schuklenk was arguing that objecting physicians should not be accommodated at all. Among his arguments was that referring for abortion or euthanasia is not a compromise because it involves moral complicity in the act, “barely reduced” by the act of referral.8  This implied that physicians should be forced to provide abortion and euthanasia, notwithstanding religious or conscientious convictions to the contrary, a position Schuklenk explicitly adopted over the next two years.9, 10

At the same time, Ottawa law professor Amir Attaran was insisting that physicians should be forced to kill eligible patients themselves.11 He claimed that this was required by human rights law,12 describing effective referral as an unacceptable form of illicit discrimination.13

In considering changes to euthanasia, assisted suicide and abortion policies in October, WMA delegates will have to take great care to consider not only the most obvious ethical issues of life and death, but less obvious yet important issues like the distinction between acceptable cooperation and unacceptable collaboration, which play out in disputes about mandatory referral for abortion and euthanasia.


Notes
1.  “According to the prevailing norm of beneficence therefore, as well as those of trust, patient autonomy, and not abandoning patients, physicians should refer patients for abortions.”  McLeod C. Referral in the Wake of Conscientious Objection to Abortion. Hypatia, Vol. 23, No. 4 (October-December, 2008) at p. 36 (Accessed 2018-08-022).

2.  Cook M. Canadian court tells doctors they must refer for euthanasia. Mercatornet, 2 February, 2018

3. 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 (November, 2011)[“Royal Society“] p. 96 (Accessed 2014-02-23).

4.  Royal Society, p. 69, 101.

5.  Royal Society, p. 62.

6.  Blackmer J. Clarification of the CMA’s position on induced abortion. CMAJ April 24, 2007 vol. 176 no. 9 doi: 10.1503/cmaj.1070035 (Accessed 2017-12-12).

7.  Rodgers S. Downie J. Abortion: Ensuring Access. CMAJ July 4, 2006 vol. 175 no. 1 doi: 10.1503/cmaj.060548 (Accessed 2017-12-12).

8.  Schuklenk, U. Conscientious objection in medicine: private ideological convictions must not supercede public service obligations (2015) 29:5 Bioethics ii, DOI: 10.1111/bioe.12167

9.  Schuklenk U, Smalling R. Why medical professionals have no claim to conscientious objection accommodation in liberal democracies (2016) 43:4 J Med Ethics 234, DOI: http://dx.doi.org/10.1136/medethics-2016-103560.

10. Savulescu J, Schuklenk U. Doctors have no right to refuse medical assistance in dying, abortion or contraception (2017) 31:3 Bioethics 162, DOI: 10.1111/bioe.12288

11.  Though conceding that a lethal drug might be administered in the physician’s presence by a delegate, and that referral might be necessitated by technical incompetence. Attaran A. The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court’s Decision in Carter v Canada (2016 ) 36:3 Health L Can 86 [“Attaran“], p. 87-88, 96.

12.  “[W]hen a doctor refuses to assist a patient who is disabled by a ‘grievous and irremediable medical condition’, just because the patient wants death rather than something else, that arguably discriminates against the disabled patient.” Attaran, p. 89.

13.  Attaran, p. 91–93.

Isle of Man abortion reform bill passed by House of Keys

BBC News

Plans to change the Isle of Man’s abortion laws have been approved by the House of Keys by a margin of 22-2.

The Abortion Reform Bill would allow women to have terminations within the first 14 weeks of their pregnancy, with other restrictions also being eased.

Under existing Manx law, abortions can only be carried out if a pregnancy is the result of rape or because of mental health concerns.

Members of the Legislative Council will now consider the bill. . . [Full text]

    • Note: the Abortion Reform Bill as passed by the Keys includes a simple  protection of conscience provision covering all “relevant” professionals (registered medical practitioners, nurses, or midwives) and pharmacists.  It requires objecting practitioners to provide information, but not  referral.

HHS rules prevent providers from being forced to do things that violate moral convictions

The Hill

Reproduced with permission

Diana Ruzicka*

In the April 4, 2018 article, HHS rule lowers the bar for care and discriminates against certain people, nursing leaders, Pamela F. Cipriano and Karen Cox, wrote that the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) Proposed Rule: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded. These accusations are unfounded and the rule should be supported.

What the rule does is “more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws.” It is not an effort to allow discrimination but an effort to prevent it by enforcing laws already on the books and gives the OCR the authority to oversee such efforts. This is something that nursing should encourage because it supports the Code of Ethics for Nurses (code).

The code reminds us that, “The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence and continue personal and professional growth.”

It is precisely because nurses are professionals who hold themselves to these standards that patients have come to see nurses as persons worthy of their trust, persons in whose hands they are willing to place their lives. Being granted by the public this weighty and solemn responsibility is humbling and must never be taken lightly. Thus the nurse’s duty to practice in accord with one’s conscience, to be a person of wholeness of character and integrity, is recognized by the.

It is odd that, despite supporting a nurse’s duty to conscience and the right to refuse to participate in an action to which the nurse objects on the grounds of conscience, Cipriano and Cox insist that the nurse, must assure that others make the care available to the patient. This suggests a failure to recognize that referring the patient to someone who will do the objectionable act in place of the nurse can make the nurse complicit.

The culpability of complicity is well recognized in law and ethics, as an accomplice is liable to the same extent as the person who does the deed. Thus, to make a referral and be complicit in an act to which the nurse conscientiously objects, also violates conscience. We doubt nursing leaders actually support this, as the consequences would be chilling.

When persons are made to violate their conscience, to set it aside, to silence it, moral integrity is eroded and moral disengagement progressively sets in. To move from caring for our fellow human beings to acting on them in ways that our conscience tells us we should not, requires powerful cognitive manipulation and restructuring to free ourselves of the guilt associated with this violation of our deeply held moral or religious beliefs.

Moral disengagement has frightening negative consequences, namely a pernicious dehumanization of persons, including oneself and of society as a whole. Rather than a nurse being someone of moral courage, ethical competence and human rights sensitivity, as our code directs, a nurse would have to be someone who is willing to surrender their conscience to expediency, powerful others, or whatever happens to be permitted by law at the time and place.

No longer would patients find that nurses are persons they can trust. It is precisely because nurses practice in accordance with their conscience that the public continues to grant them high scores on honesty and ethics.

None of this is to say that nurses may abandon patients. By promptly seeking a transfer of assignment that does not involve the objectionable act or by transferring the patient elsewhere without making a referral, the nurse continues to uphold the code by “promoting, advocating for and protecting the rights, health and safety of the patient [and, at the same time,] preserving wholeness of character and integrity.”

Clearly, refusal to care for a patient based on an individual attribute is unjust discrimination and has no place in nursing or health care. But that is not what the rule does. It protects the right to object to being forced to participate in an act that violates a person’s deeply held moral convictions or religious beliefs and from discrimination as a result of one’s refusal to participate in such an act.

To call for rescinding the rule, whose purpose is to protect this fundamental human right, would be short-sighted and could make unjust discrimination more likely and harm not only nursing but also the patients we serve.

 

Referendum on the Eighth Amendment

Amnesty International demands compulsory referral for abortion

Irish Times (Letter to the Editor)

Colm O’Gorman (Executive DIrector, Amnesty International Ireland

Sir, – Dr Andrew O’Regan (April 14th) has firm views on when health practitioners should be allow to refuse participate in abortion procedures if the referendum is passed. However, the limits he considers a trespass on practitioners’ rights are in fact how conscience-based refusal should be regulated in order to safeguard the patient’s rights too.

There is an important difference between conscientiously objecting to something – we all have a human right to thought, conscience and religion – and being allowed to act on that objection in a way that negatively impacts on others. . .

. . . So, yes, a health professional exercising conscience-based refusal should still have a duty to make a timely referral to another who will provide the service. . . . [Full text]

Physician warns of threat to freedom of conscience in Ireland

The Irish Times

Andrew O’Regan

Sir, – I have a number of concerns relating to conscientious objection and abortion.

The recently published heads of Bill define termination of pregnancy as “a medical procedure which is intended to end the life of the foetus”.

If the referendum is passed, this is the procedure that will be available on demand for any reason up to 12 weeks and after 12 weeks on vague health grounds.

First, it is of great worry to Irish practitioners that doctors, nurses and midwives cannot avoid participation in abortion in an increasing number of jurisdictions, including Sweden, Iceland, Finland and Bulgaria.

Second, in the UK supreme court, two midwives lost their battle to be treated as “conscientious objectors”, and to be excused from participating in abortions.

The midwives were told that while they could refuse to carry out the procedures themselves, they were obliged to delegate these duties to other staff and to supervise the staff during the abortions.

Many doctors and nurses consider that if their conscience prevents them from intentionally ending the life of the foetus, they should not be required to supervise and organise this same act.

The legislation proposed if the Eighth Amendment is repealed will oblige GPs and other healthcare professionals who conscientiously object to transfer care to another doctor and to inform the patient in writing that they may seek review of the objecting doctor’s decision.

Third, in 2013 a resolution to restrict the right of doctors and nurses to conscientious objection was narrowly defeated in the European Parliament. Some Irish MEPs voted for this. In the recent Dáil debates some politicians argued against a doctor’s right to avoid participation in abortion.

We have seen how one political party expelled a number of members for voting with their consciences in 2013 and how another party suspended one of the youngest female TDs in Dáil Éireann for exercising her conscience in a vote last month.

Fourth, some academic campaigners have been arguing for the removal of conscientious objection across Europe, claiming that it can be used as a “subtle method for limiting access to abortion”.

Finally, under Minister for Health Simon Harris’s plans for abortion, GPs and others will not be entitled to conscientiously object to participating in the intentional destruction (not delivery) of the foetus where there is a risk to the life or health of the patient in an emergency.

No evidence has been produced to show that intentional destruction of the foetus is necessary to avoid risks to the life or health of a pregnant patient.

I would urge GPs and our colleagues from other disciplines who are also in the front line of patient care to inform themselves fully of the implications for the practice of medicine should this referendum be passed. – Is mise,

Dr ANDREW O’REGAN,

(General Practitioner and Senior Lecturer),
Killarney,
Co Kerry.

When can a doctor conscientiously object?

America

Bernard G. Prusak*

Over the last decade, the culture wars in the United States have broken new ground: They have become battles over the rights of conscience. For example, now that same-sex marriage is a right, the question before the U.S. Supreme Court in the case of Masterpiece Cakeshop is whether its sympathetic, telegenic owner, Jack Phillips, is within his rights to refuse to make a wedding cake for a gay couple. Similarly, under the Obama administration, the court heard arguments more than once over whether employers who object on religious grounds to contraceptives or abortion should be exempted from having to provide employees health insurance that includes such services.

By contrast, debates over conscientious objection in medicine have not had the same notoriety, though they have broken out repeatedly among health care professionals and medical ethicists since the turn of the century, when there was a flare-up over pharmacists’ refusing to fill prescriptions for emergency contraceptives.

A bill currently before the House of Lords has brought conscientious objection in medicine into widespread public discussion in the United Kingdom, if not yet on the other side of the Atlantic. . . [Full text]

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]