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 3: Working in the MAD matrix

Turning "medical aid in dying" into euthanasia

The transformation of "medical aid in dying" in Bill 52 (An Act respecting end-of-life care) into euthanasia is to be accomplished using the structures and powers established by other Quebec statutes that govern the delivery of health care in the province, notably the Act Respecting Health Services and Social Services. This is the law that provides the administrative framework for the delivery of health care and the enforcement of health care policy. Other relevant statutes include the Professional Code and the laws specific to each of the health care professions. These laws have established a multi-layered and overlapping bureaucracy of committees, councils, commissions, boards, directors, examiners, coordinators, syndics and commissioners.

Appendix "A" identifies the key statutes and the health care structures established by them relevant to the purposes of Bill 52. Appendix "B" describes the complaint and disciplinary procedures authorized by the statutes that could be turned against health care workers who decline to provide or facilitate euthanasia.

If Bill 52 passes, health care providers and others who want no part of euthanasia will find their working environments increasingly controlled by a MAD matrix functioning within this system, a prominent feature of which is an emphasis on rights1 and the vindication of "user rights,"2 including a purported "right" to "medical aid in dying" promised by Bill 52.3

The MAD matrix

The Minister for Social Services and Youth Protection is empowered to issue "policy directions" that are to guide health and social service agencies and institutions in providing end-of-life care, including euthanasia.4

It remains to be seen if the ministerial directives will explicitly authorize or require physicians to kill their patients, or if the Minister will trust that winks and nods will be sufficient to get compliant agencies and institutions to issue such instructions. In this regard, note that the Collège des médecins du Québec, the regulator of medical practice, already believes that euthanasia can be an acceptable "medical act," consistent with a Code of Ethics requirement (i.e., that physicians ensure that "death occurs with dignity" and that "appropriate support and relief" is provided to the patient5).

Health care in every region in Quebec is delivered under the direction of a regional health and social service agency (Appendix A2). Bill 52 requires every agency to establish general rules concerning access to end-of-life care, including euthanasia, for all institutions and palliative care hospices in its jurisdiction.6 The agencies must inform people living in their regions of how to access end-of-life services, including euthanasia, and provide information about "the rights and options of end-of-life patients."7 In addition to regional health and social service agencies, "local health and social services networks" have been established (Appendix A5). These are intended to focus particularly on access to services, which, in this case, means euthanasia.

Almost all institutions that operate local community service centres, hospital centres or residential and long-term care centres8 are required to offer end-of-life care that includes euthanasia,9 to establish clinical programmes10 and policies concerning it,11 and to include reference to it in their codes of ethics.12 This includes rehabilitation centres, described in the Act Respecting Health and Social Services, which serve developmentally disabled patients.13

Exceptions

It was noted above that almost all institutions will be required to offer end-of-life care that includes euthanasia. There are three exceptions to the general rule.

Palliative care hospices may offer euthanasia, but are not required to do so. Before admitting patients, they must explain what kind of end-of-life care they offer.14 Similarly, hospitals that do not provide euthanasia when the Act comes into force will not be required to do so; they must notify patients of that before admitting them.15

Physicians associated with private health care facilities must not provide euthanasia unless they are authorized to do so in a written agreement with the local health authority (presumably the regional health and social services agency).16

Standards and enforcement

Obviously, every individual or group that is authorized to enact or supervise adherence to policies or standards can become a MAD functionary, using codes of ethics, protocols, guidelines, directives, etc. to normalize euthanasia. Similarly, every disciplinary or complaints procedure (or the threat of it) can be used to force participation in MAD services. However, two elements of the MAD matrix warrant special notice.

First, regional and local complaints commissioners and the Health and Social Services Ombudsman are all empowered to take action on their own initiative to enforce "the rights of a user or group of users" (Appendices B3.3, B9.2), while syndics (investigators) for professional orders may lodge complaints of professional misconduct without waiting for a complaint (Appendix B10.2). Any or all of these individuals who are MAD advocates could create considerable difficulty for physicians who are unwilling to participate in euthanasia.

Second, the Professional Code provides that anyone who "knowingly helps or, by encouragement, advice or consent" leads a member to violate the order's code of ethics can be fined not less than $1,500.00 and not more than $20,000.00 for each day the violation continues. In the case of an incorporated entity, the minimum and maximum fines are $3,000.00 to $40,000.00 per day. (Appendix B10.3) As noted above, the Collège des médecins du Québec even now believes that its Code of Ethics supports euthanasia, and it seems likely that the Collège would become an active MAD advocate should Bill 52 pass. Thus, the Physicians' Alliance for Total Refusal of Euthanasia, the Euthanasia Prevention Coalition and other groups that oppose euthanasia might face prosecution and substantial fines if they persist in encouraging or advising physicians not to participate in the procedure.

When physicians refuse

It is important identify problems that the Act poses for those who object to euthanasia for reasons of conscience and suggest changes to the Act to avoid those problems. In the event the suggestions are ignored, it becomes necessary to consider how objecting health care workers might respond to coercion by the government and state medical establishment. From the limited perspective of protecting freedom of conscience, the goal is to ensure that conscientious objectors to euthanasia will be able to continue to work in health care without becoming complicit in what they consider to be wrongdoing. (The goal reflects support for freedom of conscience, not euthanasia.)

Since the focus of Bill 52 is on physicians, that will be the focus here, even though other objecting health care workers will face similar problems. Bill 52 envisages three circumstances in which physicians might refuse to provide euthanasia.

Refusal based on statutory eligibility (Section 29)

The first is a refusal based on the physician's assessment of a patient's statutory eligibility. If, for example, the physician finds that the patient is under 18, or not a Quebec resident, or not suffering from an incurable illness, or not acting freely, the physician may not provide euthanasia, and must inform the patient of the reasons for his decision.17 Nothing else is required of the physician, but, as will be seen presently, the physician's refusal is not necessarily the end of the story, though that is not apparent from Bill 52.

Refusal for other reasons (Section 30)

The Bill also recognizes that a physician may refuse to provide euthanasia for some other unspecified reason, though it does not suggest what other reasons might exist. In this case, the physician is obliged to notify the institutional director of professional services (Appendix A15) or other person designated by the institutional executive director (Appendix A14), and, if he has been given a MAD request form, forward it to that person. The same rule applies to a physician practising in a private health facility, who is required to notify the director of professional services or other person designated by the executive director of the "local authority." It is not clear if this means the regional health and social services agency (Appendix A2) or a local health and social services network (Appendix A5). The director of professional services (or designated person) must then find another physician to act on the request.18

Physicians who are not opposed to euthanasia in principle may have various reasons for refusing to provide the procedure for eligible patients. For example, they may refuse because they believe that

• the drugs available are not suitable for the procedure;
• the institution lacks the privacy required for it;
• institutional rules concerning it are burdensome or otherwise unreasonable.

If the patient has refused to discuss the issue with family members, the physician may be unwilling to risk the consequences of killing the patient without their knowledge. Physicians concerned about the continuing prohibition of euthanasia by the criminal law may be unwilling to kill patients unless explicitly authorized to do so by statute; they may reject policies, protocols or professional guidance as providing insufficient legal protection.

In such cases, the requirement under Section 30 to notify the director of professional services and forward the MAD request should not be problematic. Since these physicians do not object to euthanasia and would be willing to provide it in different circumstances, there is no reason for them to object to facilitating it.

However, Section 30 would also apply to physicians who object to euthanasia for reasons of conscience, and this may cause problems. For the reasons explained below (Conscientious objection-Section 44), some objecting physicians may be unwilling to forward the MAD request; some may even be unwilling to notify the director of professional services. The simplest way to avoid this problem (and everyone should be interested in avoiding it) would be to amend the Bill by requiring the medical professional who countersigns a MAD request to give it to a MAD coordinator appointed by the institutional board of directors. Presumably, neither a professional who signs a MAD request nor a MAD coordinator would object to euthanasia.

Should the Bill pass unamended, it appears that an objecting physician could simply refuse to accept a written MAD request, in which case it seems that there is no obligation to forward it.19 It might be possible to fulfil the obligation to notify the director of professional services by doing so in advance, making it clear that the physician will not accept any MAD requests. Nonetheless, it would be preferable to amend the Bill in the way previously indicated.

Conscientious objection (Section 44)

Bill 52 states that it "does not limit the right of health professionals to refuse, in accordance with their code of ethics, to provide or take part in providing end-of-life care for reasons of conscience."20

There are four problems with this provision.

In the first place, it applies only to "health professionals." It does not appear to apply to assistant nurses and others who work in health care settings who might be expected to assist in killing patients or facilitate it in some way. (Appendix A19.5)

Second, everything turns on what the Act means by "provide or take part." If government (and a compliant medical establishment) intend this phrase to refer only to direct involvement in killing patients - lethally injecting the patient or preparing a toxic milkshake - it is unlikely to be sufficient. After all, councils of physicians, dentists and pharmacists are required by Bill 52 to establish local protocols for killing patients and see that they are followed. It is not at all clear that this allowance for conscientious objection applies to them.

The third problem is external to Bill 52. The Code of Ethics of the Collège des médecins du Québec demands that physicians who are unwilling to provide a service for reasons of conscience must "offer to help the patient find another physician."21

The gloss provided by the Collège emphasizes the demand for active assistance by the physician:

For example, a physician who is opposed to abortion or contraception is free to limit these interventions in a manner that takes into account his or her religious or moral convictions. However, the physician must inform patients of such when they consult for these kinds of professional services and assist them in finding the services requested.22

This kind of facilitation of morally contested procedures is often rejected by conscientious objectors because they see it as making them unacceptably complicit in wrongful conduct. Their position is not unusual.23 For example, within the context of physician involvement in killing, a refusal to help find a physician willing to provide euthanasia is entirely consistent with the position of the American Medical Association on "participation" in capital punishment. Participation, according to the AMA is any action "which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned."24

Finally, the protection of conscience provision in Bill 52 offers no protection against discrimination. For example, nothing in the Act prevents boards of directors from refusing privileges to physicians who will not participate in euthanasia.

Complaints about refusals

Regardless of the reason for refusal, patients may respond by making a standard request for a second opinion. However, a patient can also lodge a complaint about physician refusal, even in the case of a refusal based on statutory ineligibility. Further, the patient or his representative can seek the assistance of the institutional user committee (Appendix A21) and make a complaint about the physician to the institutional complaints commissioner (Appendices A13, B3), who would forward it to the institutional medical examiner for investigation (Appendix B3.2).

The medical examiner might investigate the complaint himself, or transmit it to the institutional council of physicians, dentists and pharmacists for investigation. (Appendix B4.1[b]) If the council concludes that discipline is warranted, it would communicate its opinion to the complainant and the institutional board of directors (Appendix B6), which can respond by reprimanding the physician, changing his status, or withdrawing, suspending or restricting his of privileges (Appendix B7.2).

If the institutional response does not satisfy a complainant, an appeal lies to the Health and Social Services Ombudsman, who is entitled to intervene (Appendix B9.3)

Alternatively (or simultaneously) a complaint of professional misconduct can be made to the Collège des médecins du Québec, which, upon conviction, can strike the physician from the register, suspend or restrict professional activities, or levy substantial fines (Appendix B10.3).

Unexpected responses

Up to this point, discussion has been limited to what might be considered predictable responses to the passage of An Act respecting end-of-life care. However, the continuing prohibition of euthanasia under Canadian criminal law and the lack of explicit statutory authorization to kill patients could generate some anomalous responses.

Even if Bill 52 passes and some Quebec physicians are willing to provide euthanasia, it does not follow that the promise of immunity from prosecution by the Quebec government will be sufficient to convince all of the willing physicians to do so. This has been noted in the discussion of refusals under Section 30. Similar reluctance might arise in regional health agencies, councils of physicians or other entities responsible for issuing MAD guidelines.

A more radical response (that could include physicians who are willing to provide euthanasia, but concerned about the criminal law) could conceivably take the form of deliberately and obstinately interpreting "medical aid in dying" to exclude killing patients, on the ground that the Act does not explicitly require or permit euthanasia, and MAD cannot be understood to include euthanasia because of the criminal law. This would not affect those parts of the statute supporting improvements in palliative care. However, it would completely subvert the sections that would otherwise require objectors to provide or facilitate euthanasia. Objectors contemplating such an approach should consult legal counsel in Quebec to determine whether or not the strategy is sound and the likelihood of its success.

Finally, it may be possible for objecting physicians to appeal to the Public Protector, who is empowered to intervene "whenever he has reasonable cause to believe that a person or group of persons has suffered or may very likely suffer prejudice as the result of an act or omission of a public body, its chief executive officer, its members or a person holding an office, employment or position accountable to the chief executive officer."25 The Public Protector investigates the complaint and can take action if the public body

(1) has not complied with the law;

(2) has acted in an unreasonable, unjust, arbitrary or discriminatory manner;

(3) has failed in its or his duty or has been guilty of misconduct or negligence;

(4) has committed an error of law or of fact; or,

(5) in the exercise of a discretionary power, has acted for an unjust purpose, has been actuated by irrelevant motives or has failed to give reasons for its or his discretionary act when it or he should have done so.26

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Notes:

1.  An Act Respecting Health Services and Social Services (R.S.Q. Chapter S-4.2) (Hereinafter "Bill 52") Sections 2(8), 3(2), 4-28. (Accessed 2013-06-18)

2.  Bill 52, Sections 33, 40,49, 52, 64(4), 66, 72, 74, 76.7, 76.10, 76.11(4), etc. (Accessed 2013-06-18)

3.  Bill 52, Section 5. (Accessed 2013-06-12)

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

5.   Collège des médecins du Québec, Physicians, Appropriate Care and the Debate on Euthanasia: A Reflection. (16 October, 2009) p. 2. For the Collège's view on the acceptability of euthanasia, see p. 3 to 7. (Accessed 2013-06-24)

6.  Bill 52, Section 18. (Accessed 2013-06-12)

7.  Bill 52, Section 18. (Accessed 2013-06-12)

8.  Bill 52, Section 3(1). (Accessed 2013-06-12)

9.  Bill 52, Section 8. (Accessed 2013-06-12)

10.  Bill 52, Section 9. (Accessed 2013-06-12)

11.  Bill 52, Section 10. (Accessed 2013-06-12)

12.  Bill 52, Section 11. (Accessed 2013-06-12)

13.  Bill 52, Sections 86-87. (Accessed 2013-06-18)

14.  Bill 52, Section 14. (Accessed 2013-06-12)

15.  Bill 52, Section 65. (Accessed 2013-06-12)

16.  Bill 52, Section 17. (Accessed 2013-06-12)

17.  Bill 52, Section 29. (Accessed 2013-06-22)

18.  Bill 52, Section 30. (Accessed 2013-06-22)

19.  Bill 52, Section 30, states that the refusing physician must "forward the request form given to the physician, if such is the case. . ." (emphasis added)(Accessed 2013-06-22)

20.  Bill 52, Section 44. (Accessed 2013-06-22)

21.  Collège des médecins du Québec, Code of Ethics of Physicians, para. 24 (Accessed 2013-06-23)

22.  Collège des médecins du Québec, Legal, Ethical and Organizational Aspects of Medical Practice in Québec. ALDO-Québec, 2010 Edition, p. 156 (Accessed 2013-06-23)

23.  Murphy, Sean, The Problem of Complicity; Referral: A False Compromise.  Protection of Conscience Project.

24.  AMA Policy E-2.06 Capital Punishment (June, 1998) (Accessed 2013-06-24)

25.  Public Protector Act (R.S.Q. c. C-P32), Section 13. (Accessed 2013-06-24)

26.  Public Protector Act (R.S.Q. c. C-P32), Section 26.1. (Accessed 2013-06-24)