Canadian court tells doctors they must refer for euthanasia

Will they be hounded out of their profession?

MercatornNet

Michael Cook

For years bioethicists of a utilitarian cast have argued that conscientious objection has no place in medicine. Now Canadian courts are beginning to put their stamp of approval on the extinction of doctors’ right to refuse to kill their patients.

The Superior Court of Justice Division Court of Ontario ruled this week that if doctors are unwilling to perform legal actions, they should find another job.

A group of five doctors and three professional organizations were contesting a policy issued by Ontario’s medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), arguing it infringed their right to freedom of religion and conscience under Canada’s Charter of Rights and Freedoms.

However, Justice Herman J. Wilton-Siegel wrote on behalf of a three-member panel:

“the applicants do not have a common law right or a property right to practise medicine, much less a constitutionally protected right.

“Those who enjoy the benefits of a licence to practise a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.”

At issue is the policy of “effective referral”. A doctor who objects to participating in euthanasia cannot be forced to do it. But he is expected to pass the patient to another doctor who will. The CPSO argues that effective referral is necessary “to protect the public, prevent harm to patients and facilitate access to care for patients in our multicultural, multifaith society, by guiding all physicians on how to uphold their professional and ethical obligations of non-abandonment and of patient-centred care within the context of Ontario’s public health-care system.”

Without the policy of effective referral, equitable access would be “compromised or sacrificed, in a variety of circumstances, more often than not involving vulnerable members of our society at the time of requesting services,” Justice Herman Wilton-Siegel wrote. People in remote communities might request euthanasia. If their doctor refused, they might suffer needlessly and taxpayers would have to foot the bill to subsidise the refusnik’s conscience.

It is remarkable how closely Justice Wilton-Siegel’s text hews to the arguments of bioethicists who have been chipping away at the right to conscientious objection for years.

In 2005 American legal scholar Alta Charo described conscientious objection as “an unfettered  right to personal autonomy while holding monopolistic control over a public good … an abuse of the public trust—all  the worse if it is not in fact a personal act of conscience but, rather, an attempt at cultural conquest’.

In 2006 Oxford’s Julian Savulescu argued in the BMJ that “when conscientious objection compromises the quality, efficiency, or equitable delivery of a service, it should not be tolerated”.

More recently, Canadian bioethicist Udo Schuklenk and a colleague contended in the BMJ that

“If at any given time a doctor is unable to continue practicing due to their—ultimately arbitrary—conscience views, nothing would stop them from leaving the profession and taking up a different vocation. This happens across industries and professions very frequently. Professionals can be expected to take responsibility for the voluntary choices they make.”

Responding to the ruling, Larry Worthen, executive director of the Christian Medical and Dental Society of Canada, said: “We heard from our members and other doctors with conscientious objections over and over again that they felt referral made them complicit and that they wouldn’t be able to live with themselves or stay in the profession if effective referral is still required.”

The case is sure to be appealed, but if the doctors championing conscientious objection fail, the consequences will be dire.

Throughout Canada, doctors would be required to refer for euthanasia. If they refuse, they will be hounded out of their profession, or, at best, shunted into specialties where the question will not arise, like pathology or dermatology.

This ruling shows how quickly tolerance vanishes after euthanasia has been legalised. In the Carter decision which legalised it, Canada’s Supreme Court explicitly stated that legalizing euthanasia did not entail a duty on the part of physicians to provide it. Now, however, 18 months and more than a thousand death after legalisation, conscientious objection is at risk.

It also shows how vulnerable religious-based arguments can be. The plaintiffs contended that referring patients violated their right to religious freedom. While this is true, is this the main ground for conscientious objection? As several doctors pointed out in the Canadian Medical Association Journal last year, “Insofar as all refusals of therapy are ultimately justified by the ethical belief that the goal of therapy is to provide benefit and avoid harm, all treatment refusals are matters of conscience.”


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Canadian nurse forced out for refusing to participate in euthanasia

Lifesite News

Pete Baklinski

PALMER RAPIDS, Ontario, June 14, 2017 (LifeSiteNews) — A Canadian nurse no longer has her job helping the sick and the elderly after she was told that she must either assist patients who wanted to kill themselves using the country’s new euthanasia law, or resign.

Mary Jean Martin, a Registered Nurse who worked in middle-management as a Homecare Coordinator in Ontario, said she became a nurse in the late 1980s to help the “vulnerable and the struggling,” not to be a link in a chain that would ultimately lead to a patient’s death.

“Can you imagine being a nurse and being told that you have to help kill someone? That’s so against the philosophy of nursing and it’s so against the heart of the healthcare person,” she told LifeSiteNews in an exclusive interview. . . [Full text]

 

Health care workers bring case for conscience rights to Ontario legislature

Catholic Register

Michael Swan

Armed with letters of support from religious community leaders, plus the official positions of the Ontario, Canadian and American Medical Associations, health care professionals descended on Queen’s Park May 18 in support of a Progressive Conservative private members’ bill that would shield doctors from punishment by the College of Physicians and Surgeons and other regulatory bodies if they refuse to refer for medically assisted suicide.

As the doctors entered the provincial legislature at 9 a.m., security staff warned the doctors they would not be allowed to sit in the public gallery that rings the law makers if they wear their scrubs, as that would be considered a form of protest.

Wearing her scrubs, Concerned Ontario Doctors president Dr. Kulvinder Gill made the case for Conservative health critic Jeff Yurek’s Bill 129 at a 9:45 a.m. press conference. . . [Full text]

 

On assisted suicide, let’s remember that doctors have rights too

Waterloo Region Record

Luisa D’Amato

Physicians are supposed to save lives, not hasten death.

So it’s not surprising that some doctors are having problems seeing how they fit into Canada’s new law that legalizes physician-assisted suicide for some patients.

It turns out that conscientious objectors like Sandra Brickell, a physician who works in Kitchener hospitals, are not protected.

“When somebody wants to end their life, it goes against what we’ve been trained to do,” she said at a meeting Friday with several other doctors, Kitchener-Conestoga MP Harold Albrecht and Kitchener-Conestoga MPP Michael Harris. . . [Full Text]

 

Doctors needed. Leave your conscience at home

 National Post

Marni Soupcoff

In a new paper, two prominent bioethicists suggest that all doctors should be required to see to it personally that any medical procedure — including abortions and assisted suicides — be performed for patients who request and qualify for them.

This should be the case, the authors argue, despite any personal moral or religious qualms the doctors may have about the operations or prescriptions in question. Sadly for devout Catholics, evangelical Protestants or others with deep religious or moral convictions, the prospect of medical school itself would be completely off the table if co-authors Udo Schuklenk and Julian Savulescu had their way; they argue that medical students should be screened for over-active consciences when it comes to things like contraception, abortion and euthanasia. Apparently those for whom these issues are anything but no-brainers shouldn’t be considered acceptable physician material at all. . . [Full text]

 

Doctors Have no Right to Refuse Medical Assistance in Dying, Abortion or Contraception

Abstract:  In an article in this journal, Christopher Cowley argues that we have ‘misunderstood the special nature of medicine, and have misunderstood the motivations of the conscientious objectors’. We have not. It is Cowley who has misunderstood the role of personal values in the profession of medicine. We argue that there should be better protections for patients from doctors’ personal values and there should be more severe restrictions on the right to conscientious objection, particularly in relation to assisted dying. We argue that eligible patients could be guaranteed access to medical services that are subject to conscientious objections by: (1) removing a right to conscientious objection; (2) selecting candidates into relevant medical specialities or general practice who do not have objections; (3) demonopolizing the provision of these services away from the medical profession.

Savulescu J, Schuklenk U.  (2016) Doctors Have no Right to Refuse Medical Assistance in Dying, Abortion or Contraception. Bioethics. doi:10.1111/bioe.12288

Ban conscientious objection by Canadian doctors, urge ethicists in volatile commentary

National Post

Tom Blackwell

Authorities should bar doctors from refusing to provide such services as abortion and assisted death on moral grounds, and screen out potential medical students who might impose their values on patients, leading Canadian and British bioethicists argue in a provocative new commentary.

The paper by professors at Queen’s and Oxford universities, who are also editors of two major bioethics journals, throws rocket fuel onto a debate already inflamed by the new law allowing assisted death.

They argue that physicians have no right to opt out of lawful medical services — from abortion to prescribing contraceptives — that are requested by a patient and in the person’s interest.

Those who let conscientious objection affect patient care are clearly unprofessional, say Udo Schuklenk and Julian Savulescu.

“Doctors must put patients’ interests ahead of their own integrity,” they write in the journal Bioethics. . . [Full text]

    

Unacceptable to force doctors to participate in assisted dying against their conscience: CMA head

National Post

Sharon Kirkey

No physician in the country should be forced to play a role in any aspect of assisted dying against their moral or religious beliefs — including referring patients to another doctor willing to help them die, the Canadian Medical Association says.

Legalized physician-assisted death will usher in such a fundamental change in practice “we simply cannot accept a system that compels physicians to go against their conscience as individuals on something so profound as this,” CMA president Chris Simpson said in an exclusive interview.

The unanimous Supreme Court of Canada ruling legalizing assisted dying would not compel doctors to help patients end their lives when the historic decision takes effect next year.

But the justices were more guarded on the issue of mandatory referral, saying the Charter rights of both patients and doctors will need to be reconciled.

Dr. Simpson said that many doctors who conscientiously object to assisted dying feel the very act of referral “is contrary to their personal ethics or moral or religious beliefs.” . . . [Full text]

How far should a doctor go? MDs say they ‘need clarity’ on Supreme Court’s assisted suicide ruling

National Post

Sharon Kirkey

Canada’s doctors are seeking clarity from the federal government on what the Supreme Court of Canada intended in its landmark ruling on assisted dying, including the question of how far a doctor is permitted to go in contributing to a patient’s death.

“We’ve got a few key questions that we think need clarity and this is one of them: Is it euthanasia or is it assisted dying?” said the Canadian Medical Association’s director of ethics and professional affairs, Dr. Jeff Blackmer.

The powerful doctors’ lobby said it is not clear whether the high court has opened the door not just to assisted suicide  –  where a doctor writes a prescription for a lethal overdose of drugs the patient takes herself  –  but also to something many physicians find profoundly more uneasy: pushing the syringe themselves. . . [Full text]

 

Project letter to the New Brunswick Minister of Health

Re: compulsory referral for abortion

3 December, 2014

The Honourable Victor Boudreau,
Minister of Health,
HSBC Place,
P. O. Box 5100
Fredericton, NB
Canada E3B 5G8

Dear Mr. Boudreau:

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 acceptability of morally contested procedures.

I am writing about a statement attributed to you in the Fredericton Daily Gleaner:

Health Minister Victor Boudreau: “No physician can be forced to [perform abortions], but at the same time there is a duty to refer to someone who will.”1

It is instructive to compare this to a demand made by a panel of experts of the Royal Society of Canada:

Royal Society Panel: “. . . health care professionals are not duty bound to accede to [requests for euthanasia and assisted suicide] . . . but . . . they are duty bound to refer their patients to a health care professional who will.”2Since you are new to the position of Minister of Health, you are likely unaware of the fact that arguments used by those who demand that physicians be forced to refer for abortion are also used to demand that they be forced to refer for euthanasia or assisted suicide. It was for this reason that the Protection of Conscience Project joined an intervention in the case of Carter v. Canada in the Supreme Court of Canada.3

Counsel for the Project told the Supreme Court justices that what is demanded by the Royal Society experts (and, perhaps, the New Brunswick government?) is “precisely the sort of thinking that, in our submission, ought to be protected against.”4

Any number of physicians may agree to referral for abortion or other controversial procedures because they find that it relieves them of a moral burden or of tasks they find disturbing or distasteful. However, for others, as Holly Fernandez-Lynch has observed, referral imposes “the serious moral burdens of complicity.”5 They refuse to refer for abortion because they do not wish to be morally complicit in killing a child, even if (to use the terminology of the criminal law) it is, legally speaking, “a child that has not become a human being.”6

Just as these physicians refuse to facilitate killing before birth by referring patients for abortion, they and other physicians would refuse to facilitate killing patients after birth by referring them for euthanasia or assisted suicide. Influential academics and abortion and euthanasia activists want to force objecting physicians to do both.

Professor Jocelyn Downie of Dalhousie University was one of the architects of the Carter case,7 a member of the Royal Society panel, and a long-time advocate of compulsory referral for abortion.8 She was live- tweeting the hearing from the courtroom. Udo Schuklenk, one of her fellow Royal Society experts, was following the proceedings via a live audio-video link. He described most of the interveners as “Christian activist groups, some more fundamentalist than others.” After questioning the integrity of “the God folks,” he commented on the joint intervention involving the Project:

Then there was a lawyer representing groups called the Faith and Freedom Alliance and the Protection of Conscience Project. He . . . asked that the Court direct parliament to ensure that health care professionals would not be forced to assist in dying if they had conscientious objections. That, of course, is the case already today in matters such as abortion. However, this lawyer wanted to extend conscience based protections. Today health care professionals are legally required to pass the help-seeking patient on to a health care professional willing to provide the requested service. The lawyer wanted to strike out such an obligation. I am not a fan of conscientious objection rights anyway, so I hope the Court will ignore this.9 (Emphasis added)You can see clearly from this that Professors Downie, Schuklenk and their supporters hold that because physicians can be forced to refer for abortion, they can and ought to be forced to refer for euthanasia and assisted suicide. The weakness in this claim is the false premise that objecting physicians can or ought to be compelled to refer for abortion. Notwithstanding your assertions and the views of Dr. Haddad and Professors Downie and Schuklenk, this claim is sharply disputed, and for good reason.

Physicians are required to disclose personal moral convictions that might prevent them from recommending abortion, but not to refer the patient or otherwise facilitate the procedure. The arrangement preserves the integrity of physicians, and it safeguards the legitimate autonomy of the patient, who is free to seek an abortion elsewhere.10 But it also protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong.

Just how far this can go is now coming into focus, thanks to the Royal Society’s panel of experts and their supporters. They argue that it is not sufficient to simply encourage and allow willing health care professionals to kill patients. They demand that health care professionals be compelled to participate in and facilitate the killing of patients – even if they believe it to be wrong, even if they believe it to be murder – and that they should be punished if they refuse to do so.

Killing is not surprising; even murder is not surprising. But to hold that the state or a profession can, in justice, compel an unwilling soul to commit or even to facilitate what he sees as murder, and justly punish or penalize him for refusing to do so – to make that claim ought to be beyond the pale. It is profoundly dangerous, for if the state or civil society or professional organizations can legitimately require people to commit or aid in the commission of murder, what can they not require?

Particularly in view of the possibility that the Supreme Court of Canada might legalize physician assisted suicide and euthanasia, it is of grave concern that your comments can be taken to be supportive of the movement to develop and entrench a ‘duty to do what is wrong’ in medical practice. I know of no other profession that has accepted such a duty as a requirement of membership, and I am certain that the Liberal Party of New Brunswick does not and would not impose such a duty upon its members.

I have enclosed an abstract (in English and French) of the Project’s recent submission to the College of Physicians and Surgeons of Ontario about its policy, Physicians and the Ontario Human Rights Code, which is relevant in this case. The full submission, which is on line, is available in English only.

I note that a CBC news reported in July that the President of the New Brunswick Medical Association, Dr. Camille Haddad, included refusal to refer for abortion among alleged “barriers to access” to the procedure. The CBC report added, “The society says it wants the New Brunswick government to come up with a plan to address those barriers.”11

If Dr. Haddad or others have urged you to adopt policies to promote access to abortion, that is outside the scope of Project concerns. However, I respectfully suggest that a plan to address alleged “barriers” must not include the suppression of freedom of conscience among physicians by compelling them to refer for abortion. The state has other means at its disposal to deliver the service.

Sincerely,

Sean Murphy, Administrator
Protection of Conscience Project

Notes
1. Huras A. “Abortions won’t be available in all hospitals.” Fredericton Daily Gleaner, 28 November, 2014

2. Schuklenk U, van Delden J.J.M, 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) p. 70 (Accessed 2014-12-02)

3.  Murphy S. “Re: Joint intervention in Carter v. Canada– Project Backgrounder.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

4.  Murphy S. “Re: Joint intervention in Carter v. Canada- Selections from oral submissions.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

5.  Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. 229.

6.  Criminal Code, Section 238(1). (Accessed 2014-12-02)

7.  In a 2007 symposium at Carleton University in Ottawa, Professor Downie asserted that the Supreme Court of Canada might be willing to reverse its 1993 ruling in Rodriguez. She outlined the strategy for a legal challenge under Canada’s Charter of Rights and Freedoms and said that she was looking for an ideal test case to use to strike down the law. She published a paper and essay in 2008 that appear to have drawn from her Carleton presentation. The 2007 presentation and subsequent publication set out the strategy for the plaintiffs’ successful argument in Carter. Professor Downie assisted the plaintiffs in the Carter case in preparing their expert witnesses. “Rodriguez Revisited: Canadian Assisted Suicide Law and Policy in 2007.” Dalhousie University, ListServ Home Page, FABLIST Archives, Message from Rebecca Kukla, 6 February, 2007. “Symposium on physician assisted suicide.” (Accessed 2012-06-27); Schadenberg, Alex, “Dalhousie law professor seeks to re-visit Rodriguez court decision.” Euthanasia Prevention Coalition. Downie J, Bern S. “Rodriguez Redux.” Health Law Journal 2008 16:27-64. (Accessed 2012-06-27.) Carter v. Canada (Attorney General) 2012 BCSC 886, Supreme Court of British Columbia, 15 June, 2012. para. 124. (Accessed 2014-12-02)

8.  Rodgers S. Downie J. “Abortion: Ensuring Access.” CMAJ July 4, 2006 vol. 175 no. 1 doi: 10.1503/cmaj.060548 (Accessed 2014-12-02). McLeod C, Downie J. “Let Conscience Be Their Guide? Conscientious Refusals in Health Care.” Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv

9.  Schuklenk, U. “Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation.” Udo Schuklenk’s Ethx Blog Thursday, October 16, 2014 (Accessed 2014-12-02)

10.  Murphy S. “‘NO MORE CHRISTIAN DOCTORS.’ Appendix ‘F’- The Difficult Compromise: Canadian Medical Association, Abortion and Freedom of Conscience.” Protection of Conscience Project

11.  “New Brunswick Medical Society calls for abortion access plan: Doctors’ group says 2 doctor rule no different than any other procedure.” CBC News, 26 July, 2014 (Accessed 2014-12-02)