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Protection of Conscience Project

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Service, not Servitude
Project Submissions

Submission to the College of Physicians and Surgeons of Ontario

Re: Interim Guidance on Physician Assisted Death

10 January, 2016


Abstract

Virtually all of what is proposed in Interim Guidance on Physician-Assisted Death (IGPAD) is satisfactory, requiring only clarifications to avoid misunderstanding and appropriate warnings concerning the continuing effects of criminal law.

The College has no basis to proceed against physicians who refuse to do anything that would entail complicity in homicide or suicide, including "effective referral," because they believe that a patient does not fit the criteria specified by Carter. College policies and expectations are of no force and effect to the extent that they are inconsistent with criminal prohibitions.

Proposals about respect for patients, access to services, and providing information are acceptable, subject to some clarifications and limitations with respect to offering the option of suicide. Simple and uncontroversial recommendations are offered to avoid problems associated with failed assisted suicide and euthanasia attempts, and in urgent situations.

However, the requirement for "effective referral "is completely unacceptable. It is ludicrous to assert that the reasoning that underpins the law on criminal complicity and culpability, civil liability and the College policy that prohibits referral for Female Genital Cutting can be dismissed as legally irrelevant to the exercise and protection of fundamental freedoms of conscience and religion.

The College cannot justify a demand for "effective referral" on the grounds that it cannot be understood to involve morally significant complicity in killing patients or helping them to commit suicide, nor can it be justified as a reasonable limitation on fundamental freedom.

The only apparent basis for the College's demand for effective referral is that it has decided what the Supreme Court of Canada did not decide: that euthanasia and assisted suicide in circumstances defined by Carter are morally/ethically acceptable. College officials seem to consider the College justified in using force - the force of law - to compel dissenting physicians to conform to their moral/ethical views.

This is not a reasonable limitation of freedom but a reprehensible attack on them. It is a paradigmatic example of the authoritarian suppression of freedom of conscience and religion and a serious violation of human dignity. Examples of alternative acceptable policies demonstrate that access to assisted suicide and euthanasia can be ensured without suppressing freedom of conscience and religion.


Contents
I.    Outline of the submission
II.    Avoiding foreseeable conflicts

II.1    Failed assisted suicide and euthanasia II.2    Urgent situations
II.3    Project recommendations

III.    IGPAD and criminal law
IV.    IGPAD on respect, access, notification and providing information

IV.1    Treat patients respectfully; do not impede access
IV.2    Notification of objections
IV.3    Providing information

V.    Freedom of conscience

V.1    IGPAD and "effective referral"
V.2    "Effective referral" and criminal law
V.3    Legal vs. ethical/moral evaluation of euthanasia, assisted suicide
V.4    The College position: "error has no rights"

VI.    Project response

VI.1    Previous submissions
VI.2    Making freedom easy - or impossible

VII.    Alternative acceptable policies
VIII.    Conclusion
Appendix "A"    Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix "B"    Carter in theTrial Court, Part VII: A Judicial Soliloquy on Ethics

B1.    A note of caution
B2.    The questions addressed in Part VII
B3.    Plaintiffs' claim shapes and limits the analysis
B4.    Ethics: which one?
B5.    Medical ethics
        B5.1    Ethics and the willingness of physicians
        B5.2    Ethics and the positions of medical associations
        B5.3    Ethics and the opinions of ethicists
        B5.4    Ethics and current end-of-life practices
B6.    Ethics of society
        B6.2    Ethics and public opinion
        B6.3    Ethics and public committees
        B6.4    Ethics and prosecution policies
        B7.    Summary of the ethical debate
B8.    Conclusions about the ethical debate
        B8.2    Would Canadian physicians provide the services?
        B8.3    Current medical practice with respect to end-of-life care?
        B8.4   Does the law attempt to uphold a conception of morality?
B9.    Carter Part VII: in brief
        B9.1    Unanswered questions
        B9.2    Meaningless findings
        B9.3    Inconclusiveness
        B9.4    Neglected evidence
        B9.5    Deficient review of end-of-life decision-making
B10.    On appeal to the Supreme Court of Canada

Appendix "C"    Physician Exercise of Freedom of Conscience and Religion

C1.    Introduction
C2.    Providing information to patients
C3.    Exercising freedom of conscience or religion
C4.    Reminder: treatments in emergencies


I.    Outline of the submission

I.1    The Project does not take a position on the acceptability of euthanasia and physician-assisted suicide. For this reason, much of the draft Interim Guidance on Physician-Assisted Death (IGPAD) is outside the scope of this submission.

I.2    From the perspective of freedom of conscience, virtually all of what is proposed in IGPAD is satisfactory, requiring only clarifications to avoid misunderstanding and appropriate warnings concerning the continuing effects of criminal law.

I.3    The first issue raised concerns conflicts that can adversely impact patients, families and objecting health care providers in two different situations: in failed assisted suicide and euthanasia attempts, and in urgent situations. Simple and uncontroversial recommendations are offered to avoid these problems. (Part II)

I.4    The submission next points out the legal effect of Carter v. Canada with respect to the law on homicide, suicide, parties to offences, counselling offences and conspiracy, and that counselling (recommending) suicide remains a criminal offence. In some circumstances this will limit the power of the College to enforce demands for physician participation. (Part III)

I.5    Part IV considers the draft policy's proposals about respect for patients, access to services, and providing information. The proposals are acceptable, subject to some clarifications and limitations with respect to offering the option of suicide.

I.6    IGPAD requires that physicians who, for reasons of conscience, are unwilling to kill patients or help them commit suicide, must, nonetheless, find someone willing to do so. It also threatens to punish physicians who refuse to become parties to homicide and suicide. This unacceptable demand, now the subject of a lawsuit against the College, is the primary focus of this submission. It is addressed in Parts V and VI.

I.7    Examples of acceptable alternative policies are offered in Part VII.


II.    Avoiding foreseeable conflicts
II.1    Failed assisted suicide and euthanasia

II.1.1    According to the draft, the patient must "understand and appreciate the certainty of death upon taking or having the physician administer lethal medication." In fact, euthanasia and assisted suicide drugs do not always cause death as expected.1 As will be seen presently, this issue appears to have legal implications with respect to a physician's criminal responsibility, and also implications for physician freedom of conscience.

II.1.2    A 2014 survey of Canadian Medical Association members indicated that more physicians were willing to participate in assisted suicide (27%) than euthanasia (20%).2,3,4,5

II.1.3    However, a physician who agrees to help a patient commit suicide would seem to have accepted an obligation to do something that will result in the patient's death, and to do it according to accepted standards. This obligation seems implicit in the agreement.

II.1.4    In the case of a failed physician-assisted suicide that incapacitates a patient, it is likely that the responsible physician will be expected to fulfil his commitment to help bring about the death of the patient by providing a lethal injection or finding someone willing to do so. The expectation would be stronger if the patient had sought assisted suicide to avoid the kind of incapacitation caused by the failed suicide attempt.

II.1.5    Here the issue of physicians willing to assist in suicide but unwilling to provide euthanasia becomes acute. Those willing to assist with suicide but not euthanasia may be reluctant or unwilling to ask another colleague to kill the patient.

II.1.6    Moreover, the Carter ruling limits the provision of euthanasia to competent patients. Thus, to ask physicians to kill a patient who has been rendered incompetent by a colleague's failed attempt would seem to expose them to prosecution for first degree murder or, at least, assisted suicide. Even the legal position of an administering physician faced with a patient incapacitated by the first course of medication seems doubtful.

II.2    Urgent situations

II.2.1    The College policy on Professional Obligations and Human Rights (POHR) conflicts with the draft Interim Guidance document. IGPAD insists that "effective referral" for euthanasia and assisted suicide must be "timely," and that patients must not be exposed to adverse clinical outcomes by delay. However, POHR states that a physician's obligation to provide treatment urgently needed to prevent imminent harm to patients does not extend to providing assisted suicide or euthanasia.6 This appears to assume that, since the procedures require extensive preliminary consultation and preparation before they can be authorized, they can never be urgently required.

II.2.2    That presumption is challenged by testimony taken by the Quebec legislative committee studying what later became the province's euthanasia law (An Act Respecting End of Life Care). Representatives of the College of Pharmacists of Quebec agreed that the provision of euthanasia would not seem to involve "the same urgency" as other kinds of procedures, and that arrangements could normally be made to accommodate conscientious objection by pharmacists because the decision could be anticipated.7 However, they also stated that situations may evolve more quickly than expected, and that (for example) palliative sedation might be urgently requested as a result of respiratory distress precipitated by sudden bleeding.8

II.2.3    The pharmacist representatives distinguished between making a decision that euthanasia or assisted suicide should be provided - a decision which might take days or weeks - and a decision that a drug should be urgently provided to deal with an unanticipated and critical development in a patient's condition.9

II.2.4    Under the terms of the Carter ruling and the draft policy, it is possible that a responsible physician might agree to provide euthanasia or assisted suicide on a given date and time, to accommodate (for example) the desire of geographically distant family members to be present at the patient's death. Between the time that decision is made and the appointed time, however, a sudden deterioration of the patient's condition may cause the patient to ask for immediate relief from pain or suffering by euthanasia or assisted suicide.

II.2.5    No problem will arise if the responsible physician is immediately available to fulfil the request. However, there is likely to be a problem if the responsible physician is absent or unavailable, and other physicians willing to kill the patient or assist in suicide cannot be conveniently found. This situation is more likely to arise if the originally appointed time for euthanasia/assisted suicide is some days later than the decision to provide the procedure.

II.3    Project recommendations

II.3.1    Physicians should not undertake to provide assisted suicide unless they are also willing to provide euthanasia.

II.3.2    In all cases, the responsible physician should, as part of the informed consent discussion preliminary to decision making, advise the patient of the possibility that the drugs might not cause death and discuss the options available.

II.3.3    Immediately prior to administering or providing the lethal medication, the responsible physician should obtain written direction from the patient as to what action should be taken if the prescribed or administered drugs fail to cause death. (NB. In the case of patients incapacitated by failed euthanasia/assisted suicide, it is not known if this would be legally sufficient to invoke the exemption from prosecution provided by Carter.)

II.3.4    The responsible physician should personally administer the lethal drug or be personally present when it is ingested, and remain with the patient until death ensues.

II.3.5    A responsible physician who has agreed to provide euthanasia or assisted suicide must be continuously available to do so from the time the agreement is made to the time that the procedure is performed, unless the patient withdraws the request.

II.3.6    A responsible physician who has agreed to provide euthanasia or assisted suicide must also arrange for a second responsible physician to provide the procedure in the event that he is unable to be continuously present or is unable to act.

II.3.7    The second responsible physician must be continuously available to act in the place of the primary responsible physician.


III.    IGPAD and criminal law

III.1    The draft policy states:

On [6 February, 2016], subject to any prohibitions or restrictions that may be imposed in future legislation or policy, physicians will be legally permitted to assist competent adults who are suffering intolerably from grievous and irremediable medical conditions to end their lives. (Lines 17-20)

III.2    While this statement is accurate as far as it goes, it fails to correctly assess the legal effect of Carter v. Canada with respect to the law on homicide, suicide, parties to offences, counselling offences and conspiracy and to acknowledge that counselling (recommending) suicide remains a criminal offence.

III.3    The implications of the continuing offence of counselling suicide will be discussed in relation to IGPAD's expectation that objecting physicians must provide patients with advice on "all options," though the point has broader application.

III.4    Carter did not entirely strike down murder and assisted suicide laws, and it left the law against counselling suicide intact. Physicians can be charged for murder, manslaughter, or administering a noxious substance if they fail to follow the Carter guidelines (Appendix A2.6); if they recommend suicide to patients they can be charged for counselling suicide (Appendix A2.5). Moreover, Carter did not touch laws on parties to offences, counselling offences and conspiracy, which apply to the College's policy on "effective referral." (Appendix A2.7)

III.5    In view of this, the College has no basis to proceed against any physician who, having the opinion that a patient does not fit one of the criteria specified by Carter, refuses to do anything that would entail complicity in homicide or suicide, including "effective referral." College policies and expectations are of no force and effect to the extent that they are inconsistent with criminal prohibitions.


IV.    IGPAD on respect, access, notification and providing information
IV.1    Treat patients respectfully; do not impede access

IV.1.1    The draft policy requires that physicians who refuse to provide euthanasia or assisted suicide must treat patients respectfully. The experience of the Project is that patients are normally treated respectfully by objecting physicians, though refusal itself is sometimes misunderstood or deliberately misconstrued as a disrespectful act.

IV.1.2    To 'impede access' is unacceptable, if it is understood to mean some positive act of interference, such as discouraging other health care providers from seeing the patient, or to some wrongful act, like a refusal to release medical records that are the property of the patient.

IV.1.3    On the other hand, physicians who simply refuse to help patients find someone willing to kill them or help them commit suicide are no more impeding patients than colleagues who refuse to help patients find someone willing to provide virginity certificates or sell organs.

IV.2    Notification of objections

IV.2.1    The expectation that physicians will personally advise patient of their objections is entirely in keeping with the intentions of objecting physicians made known to the Project.

IV.2.2    That objections are in all cases "due to personal and not clinical reasons" is a mistaken assumption. Objecting physicians may have both clinical and ethical/moral objections to providing euthanasia and assisted suicide. Where both reasons exist, it is appropriate to inform the patient of both. Indeed: to withhold clinical reasons would seem to violate the requirements of informed medical decision-making.

IV.3    Providing information

IV.3.1    In the Project's experience, objecting physicians are willing to provide information necessary to enable informed medical decision making, so the expectation that they will provide information on all treatment options, including euthanasia and assisted suicide, should not be problematic. However, two qualifications are in order.

IV.3.2    First: counselling (recommending) suicide remains a criminal offence. Although it may be appropriate for physicians to discuss assisted suicide in response to a patient's request or enquiries, physicians cannot be expected to "offer the option" of assisted suicide outside the context of a patient-led discussion. Further: even in that arguably legal context, a physician may be reluctant to discuss the option of assisted suicide if there is some reason to fear that the patient might thus be prompted to commit suicide independently.

IV.3.3    Second: while information necessary to enable informed medical decision-making must be provided, the point at which that information ought to be provided must be left to the discretion of individual physicians based on their knowledge of and interaction with their patients.

IV.3.4    Physicians may believe that it would sometimes be harmful or even abusive to gratuitously offer assisted suicide and euthanasia as treatment options: the case of a patient just blinded or paralysed by an industrial accident comes to mind.

IV.3.5    It may sometimes be at least insensitive to offer assisted suicide and euthanasia as treatment options: for example, upon a diagnosis of dementia, congestive heart failure, chronic obstructive pulmonary disease, stroke, or major depressive disorder, all of which would qualify as irremediable medical conditions under the terms of the Carter ruling.


V.    Freedom of conscience
V.1    IGPAD and "effective referral"

V.1.1    The draft policy requires physicians who refuse to kill patients or help them commit suicide arrange for them to be killed or assisted in suicide by a willing colleague by means of an "effective referral," as defined in Professional Obligations and Human Rights.

V.1.2    The policy demands that the referral must be "timely," so that patients will not experience "adverse clinical outcomes" before being killed.

V.1.3    Since the College reasonably foresees that the number of physicians willing to kill patients or help them commit suicide "may be limited," it "expects physicians to make reasonable efforts" to an keep up-to-date list of physicians willing to provide lethal injections and prescriptions.

V.1.4    While this particular requirement applies to all physicians, the College makes a point of imposing it in the section of the policy dealing with conscientious objection. Moreover, the College imposes no obligation on physicians willing to kill patients or help them commit suicide to identify themselves in order to make the services more accessible.

V.1.5    The differential treatment of objecting and non-objecting physicians by exclusively imposing an offensive requirement on the former is strongly suggestive of an illicitly discriminatory attitude toward objecting physicians.

V.2    "Effective referral" and criminal law

V.2.1    The College policy requiring "effective referral" is unacceptable to many conscientious objectors because they believe that it makes them unacceptably complicit in homicide and suicide. The validity of this position can be verified by considering the effect of a policy of "effective referral" absent the Carter decision.

V.2.2    But for the Carter decision, providing an "effective referral" for euthanasia or assisted suicide would expose physicians to prosecution as parties to murder or assisted suicide, or conspiracy to commit murder or assisted suicide (Appendix A2.6 - A2.7). It would, in addition, make objecting physicians parties to wrongdoing according to their moral/ethical/religious beliefs. Identical reasoning leads to identical conclusions about moral and criminal responsibility.

V.2.3    Given the Carter decision, providing an "effective referral" for euthanasia and assisted suicide in accordance with the Carter criteria remains serious wrongdoing from the perspective of many objecting physicians and health care workers, but it is not a criminal offence because killing patients or helping them commit suicide à la Carter is not a criminal offence, not because the reasoning about criminal complicity has changed or has been invalidated.

V.2.4    The Carter decision changed the law on murder and assisted suicide by making exemptions in defined circumstances, but it did not change the reasoning that underpins the law on parties to offences. The reasoning that supports the law against aiding or abetting murder is exactly the same reasoning used by physicians and health care providers who would refuse to provide "effective referral" for euthanasia. It is, moreover, reasoning that the College accepts and applies:

Under the Canadian Criminal Code, the performance of FGC/M is considered to be aggravated assault; anyone who aids, abets or counsels such assault is considered to be a party to the offense; . . .

Physicians must not perform any FGC/M procedures. Further, physicians must not refer patients to any person for the performance of FGC/M procedures.

The performance of, or referral for, FGC/M procedures by a physician will be regarded by the College as professional misconduct.10

V.2.5    Since Carter does not invalidate the reasoning leading to the conclusion that effective referral involves criminal culpability, and the same reasoning leads to the conclusion that effective referral involves moral culpability, nothing in Carter impugns the conclusion of physicians who, applying this reasoning, refuse to provide effective referrals because they refuse to be complicit in homicide and suicide - or female genital cutting.

V.3    Legal vs. ethical/moral evaluation of euthanasia, assisted suicide

V.3.1    Further, while Carter means that euthanasia and assisted suicide in the circumstances defined by the Court are no longer criminal offences, the ruling does not affect the validity of moral/ethical/religious beliefs that it is gravely wrong to kill patients or help them to commit suicide, even in those circumstances.

V.3.2    Notwithstanding the appellants' occasionally extravagant claims,11 evidence at trial did not demonstrate the ethical or moral acceptability of euthanasia or assisted suicide.12 It was not an issue in the appeal,13 and the Supreme Court of Canada was unconcerned with the question.14  Thus, nothing in Carter suggests that objecting physicians are mistaken in believing that killing patients or helping them to commit suicide is gravely wrong, even in the circumstances defined by the Court (Appendix "B").

V.3.3    On the contrary, the Supreme Court of Canada acknowledged continuing moral/ethical opposition to providing or participating in euthanasia and assisted suicide,15 that the need to accommodate objecting health care providers.16

V.4    The College position: "error has no rights"

V.4.1    The Canadian Charter of Rights and Freedoms is not interpreted in a legal vacuum. It would be ludicrous to assert that the reasoning that underpins the law on criminal complicity and culpability, civil liability and the College policy that prohibits referral for female genital cutting can be dismissed as legally irrelevant to the exercise and protection of fundamental freedoms of conscience and religion. That would arbitrarily disconnect the Charter from the corpus of Canadian law. The College is thus precluded from justifying a demand for "effective referral" on the grounds that it cannot be understood to involve morally significant complicity in killing patients or helping them to commit suicide.

V.4.2    Moreover, the nature of what the College demands - morally significant complicity in homicide and suicide - precludes justification of the policy on the grounds that forcing objecting physicians to arrange for the killing of patients by someone else is a reasonable limitation of their fundamental freedoms that can be demonstrably justified in a free and democratic society.

V.4.3    The only apparent basis for the College's demand for effective referral is an assertion of its own authority to make binding dogmatic decisions, together with the claim that error has no rights.

V.4.4    That is: College officials appear to have decided what the Supreme Court of Canada did not decide: that euthanasia and assisted suicide in circumstances defined by Carter are morally/ethically acceptable, rather than simply legally permissible (Appendix A3). College officials seem to consider the College justified in using force - the force of law - to compel dissenting physicians to conform to their moral/ethical views.

V.4.5    The requirement for "effective referral" in IGPAD is a paradigmatic example of the authoritarian suppression of freedom of conscience and religion by those in positions of power, cloaked by a pretence of moral neutrality.


VI.    Project response
VI.1    Previous submissions

VI.1.1    The Protection of Conscience Project's 2014 submission to the College concerning Physicians and the Human Rights Code remains relevant:

. . .it is incoherent to include a duty to do what one believes to be wrong in a code of ethics, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing. . .

There is a significant difference between preventing people from seeking perfection by doing the good that they wish to do and destroying their integrity by forcing them to do the evil that they abhor.

As a general rule, it is fundamentally unjust and offensive to force people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy. And it is dangerous, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

VI.1.2    In 2015, the Project warned against the requirement for "effective referral" in Professional Obligations and Human Rights.

A Council member who approves Professional Obligations and Human Rights will thereby approve the principle that a learned or privileged class, a profession or state institution can legitimately compel people to do what they believe to be wrong - even gravely wrong - even murder - and punish them if they refuse.

VI.1.3    These warnings were ignored. College Council uncritically adopted the policy of "effective referral."

VI.1.4    As the Project predicted, College officials now want the power to compel physicians to kill patients or arrange for them to be killed - and punish them if they refuse. It is doubtful that any argument is likely to prevail against this authoritarian mindset. When argument fails, stories may help.

VI.2    Making freedom easy - or impossible

VI.2.1    Dr. Sigmund Rascher attended the Luftwaffe's Institute for Aviation Medicine in Munich for a medical course in May, 1941. He wrote to Reichsfuehrer SS Heinrich Himmler, asking if "professional criminals" or "feeble minded" persons could be made available as test subjects for high altitude research.17 Himmler agreed to provide "asocial individuals and criminals who deserve only to die" to serve as test subjects,18 and approved the use of Dachau for the project in July.19  He was concerned that physicians or researchers from the Luftwaffe or Institute for Aviation Medicine would attempt to take credit for the research, so he insisted that Rascher, an SS physician with no expertise in aviation medicine,20 participate in all experiments involving human subjects.21

VI.2.2    Subsequently, Institute director Weltz met Dr. Siegfried Ruff, Dr. Wolfgang Romberg and Dr. Rascher at the institute to discuss the planned experiments. According to Ruff, the plan was to use concentration camp inmates condemned to death, whose sentences would be commuted to life imprisonment. He did not consider the experiments immoral, "especially in war time."22 At least 200 experiments were conducted by Rascher and Romberg in Dachau from March to May, 1942,23 during which 70 to 80 of the test subjects died.24

VI.2.3    Later, Rascher and his colleagues in Dachau embarked on a series of "freezing experiments" that ultimately involved 300 inmates, 70-80 of whom died.25 It appears that the experiments met with resistance, and Himmler asked Rascher to personally report on the experiments to Luftwaffe Inspector General Erhard Milch in the hope that "the difficulties, based mainly on religious objections . . . could be eliminated."

The difficulties are still the same now as before. In these "Christian medical circles" the standpoint is being taken that it goes without saying that a young German aviator should be allowed to risk his life but that the life of a criminal . . . is too sacred for this purpose and one should not stain oneself with this guilt. . .It will take at least ten years before we can get such narrow-mindedness out of our people.26

VI.2.4    With this summary of the "high altitude" experiments in Dachau in mind, return now to Institute for Aviation Medicine in late 1941 or early 1942, when Institute director Dr. Weltz approached Dr. Wolfgang Lutz about assisting with the Dachau experiments. Dr. Lutz, the son of an Austrian general practitioner,27 was an internal medicine specialist, a Luftwaffe physician who had joined the Institute in 1940.28

VI.2.5    According to Dr. Lutz, he was asked by Weltz if he was willing to participate in "high altitude research on human beings in the Dachau concentration camp."29 Dr. Lutz said that he understood that the research was intended to save the lives of soldiers, and that the test subjects would be criminals who had been condemned to death, but who had the opportunity to be pardoned if they participated in the experiments.30

VI.2.6    Dr. Lutz declined, later testifying that he did not consider himself "robust enough to conduct such experiments."31 When asked on cross-examination to explain what he meant, he said, "It is even difficult to experiment upon a dog which looks at you and which seems to have some kind of a soul; it is even difficult to do that with a dog."32,33

VI.2.7    What is of interest here is not that Lutz declined to participate, nor his reasons, which did not amount to conscientious objection. What is of interest is the approach taken by Dr. Weltz.

Dr. Wolfgang Lutz

Lutz: Weltz, in the way in which he formulated the question, let it be seen that he expected that we would refuse. He called us in and he asked us "Do you want to conduct these experiments in Dachau?" And he continued to me: "Mr. Lutz, I do not believe that you want to do that because I know you are rather religious." These were his exact words, so that he neither forced us or urged us to agree. Rather, on the contrary, he made refusal easy for us."34

VI.2.8    Nazi Germany: the director of a Luftwaffe medical institute, suspecting (incorrectly, it seems) that the subordinate physician might have religious scruples about the Dachau experiments supported by Heinrich Himmler, "made refusal easy."

VI.2.9    Nazi Germany: no Universal Declaration of Human Rights, no Charter of Rights and Freedoms, just the Fuehrer Principle - yet, sensitive to moral scruples, Dr. Weltz "made refusal easy."

VI.2.10    But physicians who don't want to be involved in killing patients will not find refusal made easy in Ontario. On the contrary: College officials want to make it impossible.

VI.2.11    This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them. It is a serious violation of human dignity. And it is profoundly dangerous. If the state can demand that citizens must be parties to killing other people and threaten to punish them or discriminate against them if they refuse, what can it not demand?


VII.    Alternative acceptable policies

VII.1    The suggestions made in recent guidance from the College of Family Physicians of Canada indicate the kind of response that should be presumed and encouraged from physicians who receive requests for euthanasia or assisted suicide.35

VII.2    Subject to the Project's recommendations (which largely mirror those in this submission),36 the Draft Statement on Physician Assisted Dying (October, 2015) from the College of Physicians and Surgeons of Manitoba37 is generally satisfactory.

VII.3    In Appendix "C" the Project offers an example of a freedom of conscience policy that can be applied to all services or procedures, including euthanasia and assisted suicide.


VIII.    Conclusion

VIII.1    From the perspective of freedom of conscience, virtually all of what is proposed in IGPAD is satisfactory, requiring only clarifications to avoid misunderstanding and appropriate warnings about the continuing effects of criminal law.

VIII.2    The single element of IGPAD that is completely unacceptable is the demand for "effective referral." This and previous submissions from the Project have addressed this. The examples of alternative acceptable policies demonstrate that access to assisted suicide and euthanasia can be ensured without suppressing freedom of conscience and religion.

VIII.3    As a rule of thumb when developing policies related to physician involvement , many objecting physicians will refuse to do anything that, but for Carter, would make them parties to murder or assisted suicide, or conspiracy to commit murder or assisted suicide.


Notes

1.  Groenewoud JH, van der Heide A. Onwuteaka-Philipsen BD Willems DL van der Maas PJ, van der wal G., "Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands." N Engl J Med 2000; 342:551-556 February 24, 2000

2.    Moore E. "Doctor is hoping feds will guide on assisted suicide legislation." Edson Leader, 12 February, 2015. (Accessed 2015-07-16).

3.  Rich, P.  "Physician  perspective on end-of-life issues fully aired." Canadian Medical Association, 19 August, 2014 (Accessed 2015-06-22).

4.  Ubelacker S. "Medical professionals try to answer burning questions on doctor-assisted death." Associated Press, 13 February, 2015 (Accessed 2015-07-04).

5.  Kirkey S. "How far should a doctor go? MDs say they 'need clarity’ on Supreme Court’s assisted suicide ruling."  National Post, 23 February, 2015 (Accessed 2015-07-04).

6.  "A request for physician assisted death will not be considered an emergency in the context of this policy, and is therefore not a service or intervention that physicians will be required to provide, contrary to their conscience or religion." College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights: Frequently Asked Questions. (Accessed 2015-10-17).,

7.  Consultations & hearings on Quebec Bill 52, College of Pharmacists of Quebec:
Dianne Lamarre, Manon Lambert.
Tuesday 17 September 2013 - Vol. 43 no. 34 (Hereinafter "Consulations") T#49, T#58.

8.  Consultations, T#33.

9.  Consultations, T#76, T#87, T#88.

10.  College of Physicians and Surgeons of Ontario, Policy Statement #2-11, Female Genital Cutting (Mutilation) (Updated September, 2011) (Accessed 2016-01-05)

11. In his oral submission, Joseph Arvay referred to the ethical distinction between euthanasia and withdrawing or withholding treatment, describing it as "the Rubicon." "We asked the trial judge to cross that Rubicon. And she did, based on evidence of ethicists and philosophers and physicians and practitioners, and she said there is no ethical distinction . . .". Supreme Court of Canada, Webcast of the Hearing on 2014-10-15, 35591, Lee Carter, et al. v. Attorney General of Canada, et al (British Columbia) (Civil) (By Leave). Joseph Arvay, Oral Submission, 101:25 | 491:20 to 102:01 | 491:20 (Accessed 2015-06-28).

12.  The trajectory of the case was determined by the trial judge’s belief that suicide can be a rational and moral/ethical act, which led her to conclude that assisted suicide and euthanasia could be ethical. These moral/ethical conclusions became the assumptions underlying the judge’s explanation of the purpose of the law, but they originated in the judge’s personal views, not derived from the evidence. See Murphy S. "Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada," Part VI.1Protection of Conscience Project.

13.  Carter v. Canada (Attorney General), 2015 SCC 5, para. 40. (Hereinafter "Carter") Accessed 2015-06-27.

14.  Carter, para. 1-4

15.  Carter, para. 130-131

16.  Carter, para. 132

17.   Letter from Dr. Sigmund Rascher to Reichsfuehrer SS, 15 May, 1941. (Letter to Heinrich Himmler concerning the high altitude experiments. Harvard Law School Library Item No. 30)  Accessed 2016-01-07.

18.  Letter from Heinrich Himmler to Erhard Milch, November, 1942. (Letter to Erhard Milch concerning the high altitude and freezing experiments. Harvard Law School Library Item No. 65). Accessed 2016-01-07.

19.  Brandt REH, Affidavit. (Affidavit concerning the high altitude experiments at Dachau. Harvard Law School Library Item No. 29). Accessed 2016-01-07

20.  Ebbinghaus A. "Introduction to the Trial's History." In The Nuremberg Medical Trial 1946/47: Transcripts, Material of the Prosecution and Defense, Related Documents. Guide to the Microfiche Edition. Compiled by Johannes Elzschig and Michael Walter, (Hereinafter "Ebbinghaus"), p. 58.

21.  Brandt REH, Affidavit. (Affidavit concerning the high altitude experiments at Dachau. Harvard Law School Library Item No. 29). Accessed 2016-01-07.

22.  Ruff S. Affidavit, 18 October, 1946. (Affidavits concerning the high altitude experiments at Dachau. Harvard Law School Library Item No. 28).  Accessed 2016-01-07.

23.  Rascher S. Secret Report, 11 May, 1942 (Munich) (Secret Report. Harvard Law School Library Item No. 48). Accessed 2016-01-07.

24.  Ebbinghaus, p. 58, citing Transcript p. 1698.

25.  Ebbinghaus, p. 15.

26.  Letter from Heinrich Himmler to Erhard Milch, November, 1942. (Letter to Erhard Milch concerning the high altitude and freezing experiments. Harvard Law School Library Item No. 65). Accessed 2016-01-07.

27.  Waters V. "Wolfgang Lutz Obituary." The Guardian, 30 November, 2010. () Accessed 2016-01-08.

28.  Official Transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al., defendants, sitting at Nurnberg, Germany, on 12 December 1946, 0930-1630, Justice Beals, presiding. (Hereinafter "Transcript") p. 267-268. Accessed 2016-02-07.

29.  Transcript, p. 268.

30.  Transcript, p. 277, 294.

31.  Transcript, p. 269-270.

32.  It does not appear that he actually explained this to Weltz. When asked in cross-examination if Weltz knew this, he said only that Weltz knew that he had rejected involvement. Transcript, p. 302.

33.  Weltz was charged with war crimes and crimes against humanity. Testifying in his own defence, said that he had discussed the Dachau experiments "rhetorically" with Lutz but was surprised to learn that he did not think himself "robust" enough to participate. Neumann A. "Wolfgang Lutz: Die höhenphysiologischen Experimente im Konzentrationslager Dachau 1942 und deren Auswirkungen auf seine Biographie" ("Wolfgang Lutz: The altitude physiological experiments in the Dachau concentration camp in 1942 and their impact on his biography.") Inaugural Dissertation for Earning a Doctorate in Medicine of the Faculty of Medicine at the University of Giessen, 2013. Accessed 2016-01-07.

34.  Transcript, p. 282.

35.  College of Family Physicians of Canada, A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and Voluntary Euthanasia (September, 2015) Accessed 2015-10-30.

36.  Protection of Conscience Project, "Submission to the College of Physicians and Surgeons of Manitoba Re: Draft Statement on Physician Assisted Dying (15 October, 2015)." (10 November, 2015).

37.  College of Physicians and Surgeons of Manitoba, Draft Statement on Physician Assisted Dying (October, 2015).

 

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