Redefining the practice of medicine

Winks and nods and euthanasia in Quebec

Bill 52: An Act respecting end-of-life care (June, 2013)

Sean Murphy*

Part 1: Overview

The Medical Act

Quebec's Minister for Social Services and Youth Protection has introduced Bill 52, An Act respecting end-of-life care.1 Its potential impact on freedom of conscience in health care must be evaluated in the light of one of the routine amending provisions intended to bring other provincial statutes into line with the proposed legislation. Bill 52 will make the following changes to Section 31 of Quebec's Medical Act, which defines the practice of medicine.

The provision of appropriate symptom relief has always been considered part of the practice of medicine, so the addition of the phrase would seem to be inconsequential. However, Bill 52 adds a new sub-paragraph to the list of activities identified by Section 31 as "reserved to physicians":

(12) administering the drug or substance or allowing an end-of-life patient to obtain medical aid in dying under the Act respecting end-of-life care.3

Bill 52 requires that a physician who determines that "medical aid in dying" (MAD) may be administered to a patient "must administer such aid personally and take care of the patient until their death."4

Given the history of the legislation, it is reasonable to infer that the amendment to Section 31 of the Medical Act is intended to redefine the practice of medicine in Quebec to include physician-administered euthanasia, and that An Act respecting end-of-life care is intended to permit physicians, in defined circumstances, to kill their patients as part of the redefined practice of medicine.5

However, the intention of the government is one thing; the text of the statute is another. There seems little reason to doubt that the intention of the government is to permit or even to require physicians to provide or facilitate euthanasia, but it is doubtful that the text of Bill 52 is alone sufficient for that purpose because it is studiously ambiguous. It is very likely that the studied ambiguity is deliberate, a strategy designed preclude constitutional challenges to the legislation. Ambiguity may prevent conflicts with the criminal law, but it may also have other effects not anticipated by the government.

Constitutional law

As a preliminary to reviewing Bill 52, it is necessary to consider key elements of Canadian constitutional law: the jurisdictions of the federal and provincial governments in criminal law and health care.

The federal government has exclusive jurisdiction over Canadian criminal law, which prohibits assisted suicide and consensual homicide (and, thus, physician assisted suicide and euthanasia). Provincial governments cannot change the criminal law, but they are constitutionally responsible for enforcing it and prosecuting criminal offences. The provision of health care, on the other hand, is within the exclusive jurisdiction of provincial governments.

"Medical aid in dying" and criminal law

Bill 52 indicates that "medical aid in dying" is an action by a physician; it cannot be readily construed to authorize assisted suicide, which would involve a lethal act by a patient. Thus, the bill is not open to a constitutional challenge because it conflicts with the (federal) criminal law against assisted suicide. If the bill authorized physicians to kill patients by administering lethal drugs or by some other means, it would conflict with the criminal law against murder. Since a provincial statute cannot override the criminal law, Bill 52 would probably be found to be unconstitutional.

However, Bill 52 does not actually define "medical aid in dying." It seems from the proposed sub-paragraph 12 of the Medical Act that "medical aid in dying" could include the administration of a drug or substance, but it could also include other acts. More important, nothing in An Act respecting end-of-life care specifies that MAD includes killing a patient. Thus, on the face of it, there is no conflict with criminal law and no basis for a constitutional challenge.

Euthanasia by winks and nods

The bill states that policies giving effect to the law will be determined by the Minister for Social Services and Youth Protection.6 It also envisages the development of MAD guidelines by professional regulators, and requires protocols be developed by institutional councils of physicians, dentists or pharmacists or institutional medical directors.7 All of this suggests that the Quebec government plans to introduce euthanasia by means of winks and nods. Having made its intentions clear, it expects regulators, health care administrators and physicians to understand what is expected of them: to incorporate euthanasia into their definition of "medical aid in dying" and regulate it through MAD policies consistent with Bill 52.

Though the Quebec government has provided the impetus and framework for the redefinition of the practice of medicine to include euthanasia, the procedure cannot become part of medical practice in Quebec unless the medical profession itself (broadly speaking) formally accepts it as a form of health care under the rubric of "appropriate symptom relief." Formal acceptance would be signified by MAD guidelines and directives issued by regulators, professional associations or councils, medical directors and health care authorities.  This subtle, two-step approach is highly significant, and we will return to it presently.

Circumventing criminal prohibition

Neither Bill 52 or MAD guidelines would abolish the criminal prohibition of euthanasia, however, so physicians who killed patients in the circumstances contemplated by Bill 52 would still be liable to prosecution. Thus, the provincial government is likely to adopt the recommendation of the Select Committee on Dying with Dignity:

Although criminal law falls under the purview of the federal government, Québec is responsible for the administration of justice and application of criminal law. As such, the Attorney General of Québec decides whether to lay charges and prosecute. To ensure doctors have peace of mind when practicing their professions, the Attorney General of Québec should issue directives, in the form of "guidelines and measures", to the Director of Criminal and Penal Prosecutions so that physicians who provide medical aid in dying in accordance with the criteria provided by law cannot be prosecuted.8

The committee pointed out that the province adopted such a policy to prevent the enforcement of the criminal law on abortion.9

Federal options

Should the provincial government refuse to prosecute Quebec physicians who kill patients in accordance with An Act respecting end-of-life care, the federal government could, in theory, appoint and pay lawyers to act as prosecutors. However, this would be especially contentious in Quebec, since the current government is ideologically committed to the separation of Quebec from Canada and the establishment of the province as an independent nation state. Nationalist elements in Quebec would see that kind of federal intervention as not only a constitutional violation of provincial jurisdiction, but as a violation of sovereignty.

Even if the federal government decided to hire prosecutors it would face a significant practical problem. Federal prosecutors would be unable to act without the cooperation and assistance of the police, who investigate allegations and provide prosecutors with the evidence needed to support charges. Quebec police forces are under the jurisdiction of the provincial and municipal governments. While they are technically autonomous in their decisions about what to investigate, it is by no means certain that they would be willing to go against the public policy of the province on an issue as contentious as euthanasia.

Long term prospects

If Bill 52 passes it seems unlikely that Quebec physicians who provide euthanasia under MAD guidelines will be prosecuted even if euthanasia remains a criminal offence. Moreover, the Parti Québécois (PQ) minority government needs the support of other parties to pass the legislation, so it is unlikely that the legislation would be repealed or a non-prosecution policy reversed even if the PQ loses the next election. Note that, despite changes in government, the province refused to enforce Canada's criminal law on abortion for 12 years, so a policy of refusing to prosecute physicians providing euthanasia could have similar staying power.

Quebec's strategy in brief

To sum up, it appears that the strategy of the Quebec government includes three key elements:

a) A statute that authorizes and allows the regulation of "medical aid in dying" (MAD) but does not define the term, so as to avoid conflict with the criminal law and constitutional challenges to the law;

b) Compliant medical regulators, professionals and health care authorities who are expected to define MAD to include euthanasia, thus establishing it as a legitimate aspect of health care;

c) Refusal to prosecute physicians who kill patients in accordance with MAD guidelines, thus circumventing the criminal prohibition of euthanasia.

The signficance of winks and nods

The weak point in this strategy is (b). The Quebec government can control the text of statutes, regulations and ministerial policies, and it can refuse to prosecute physicians. However, while it can exercise considerable influence over medical regulators, professionals and health care authorities, winks and nods may not be sufficient to secure universal compliance. Given the extremely contentious nature of the subject, it does not seem realistic to expect the medical community to achieve anything approaching a consensus that killing patients is an appropriate method of symptom relief, whether it is called euthanasia or "medically assisted dying."  The ambiguous text of Bill 52 allows a variety of responses, which will be explored in detail in Part 3.

For the moment, however, let us assume that the government is correct in anticipating the compliance of the Quebec medical establishment.Take, for example, the following requirement:

Section 32: The council of physicians, dentists and pharmacists established for an institution must, in accordance with the clinical standards established by the professional orders concerned, adopt clinical protocols applicable to terminal palliative sedation and medical aid in dying.

What is first implied by this section is that the Collège des médecins du Québec (College of Physicians of Quebec) (the "professional order") will establish clinical standards for MAD. Let us suppose that the Board of Directors of the College of Physicians issues a directive that MAD must be provided by giving the patient a drug or substance orally or by injection. The Board may or may not specify that the drug or substance must have a lethal effect; they may hope that winks and nods will make it unnecessary to put that in writing.

In any case, we imagine that the medical staff at a hospital ("council of physicians. . . established for an institution") receives the MAD directive from the College. The council must apply the standard by adopting "clinical protocols:" more specific guidance on the choice of oral or intravenous routes, identifying appropriate drugs, specifying dosages, identifying internal levels of authority for decision-making, etc. We assume that medical staff have understood from the winks and nods what is expected of them and are willing to comply, so their protocols make it clear that patients will be killed by oral ingestion or injection of a lethal drug. Physicians at the hospital begin providing euthanasia.

The College of Physicians becomes aware, if only in a general way, that this is happening in hospitals. It does not object to it, since that is exactly the result intended by its MAD standard. Its silence becomes a practical affirmation of the practice. All of those involved in developing MAD standards and protocols consider euthanasia to be part of medical practice; they consider euthanasia to be a form of health care. Indeed: by statute, eligible patients have a right to "medical aid in dying."10

In this scenario it remains true that the law does not actually require or authorize the killing of patients; the statute refers only to "medical aid in dying." However, to continue to make the point would draw the response that "everybody knows" euthanasia is legal in Quebec. From a practical perspective, the text of the statute is a "mere technicality."

Nonetheless, it is not a mere technicality that the medical establishment and not the statute will have directed that patients can be killed in order to relieve their symptoms. On the contrary: it is profoundly significant. Having formally approved of euthanasia, the establishment (meaning all of those who collaborate in drawing up MAD guidelines and protocols) will be at particular pains to defend the decision and assert it as an ethical norm. Each will have a personal stake in it, one that will be all the stronger precisely because all of them chose to do what the statute itself did not actually demand: because they agreed to do, not what was required, but what was merely implied. Never underestimate the power of winks and nods.

Consequences for freedom of conscience

If all of these things come to pass in Quebec, those who refuse to provide or facilitate euthanasia for reasons of conscience will likely find themselves in increasingly complicated and contentious working environments. Their continued refusal to acquiesce in what they believe to be gravely wrong and their insistence that euthanasia is incompatible with the ethical practice of medicine is likely to become increasingly offensive to the medical establishment and to colleagues who support and provide euthanasia.

Thus, the medical establishment will be inclined to assert that all physicians in Quebec have a professional duty to provide euthanasia, or, at the very least, a professional duty to facilitate it. Logically, this would require modification of medical, pharmacy and nursing education so that students could be taught how to kill or assist in killing patients. Ultimately, it could make a willingness to provide or facilitate euthanasia a condition for admission to and progress within the health care professions.

In the end, freedom of conscience for Quebec health care workers who object to euthanasia may come to mean nothing more than the freedom to find another job, or the freedom to leave the province. 

Notes:

1.  Bill 52, An Act respecting end-of-life care. (Accessed 2013-06-12) Hereinafter "Bill 52."

2.  Medical Act, RSQ, c M-9 (Accessed 2013-06-12)

3.  Bill 52, Section 63. (Accessed 2013-06-12)

4.  Bill 52, Section 29. (Accessed 2013-06-12)

5.  A committee of the provincial legislature, the Select Committee on Dying with Dignity (Commission spéciale sur la question de mourir dans la dignité) , produced a report in March, 2012 recommending that the province authorize euthanasia and physician assisted suicide. Key elements of the report are incorporated into Bill 52. Select Committee Dying with Dignity Report (March, 2012) (Accessed 2013-06-13) 

6.  Bill 52, Section 20. (Accessed 2013-06-12)

7.  Bill 52, Sections 32, 34. (Accessed 2013-06-12)

8.  Select Committee Dying with Dignity Report (March, 2012) p. 89-90. See also Recommendation 20. (Accessed 2013-06-13)

9.  Select Committee Dying with Dignity Report (March, 2012) p. 90. (Accessed 2013-06-13)

10.  "Every person whose condition requires it has a right to receive end-of-life care." (which includes MAD) Bill 52, Section 5, (Accessed 2013-06-12)