Extracts of Briefs, Edited Video Transcripts

Abramson, Jana & Kenneth [Full text]

3.  All Canadians must have access to physician-assisted dying. Physicians,hospitals or other facilities caring for the ill must provide a qualified medical professional (including healthcare practitioners such as nurses and physicians' assistants) who can assist a person who wishes to end his/her life provided two physicians can verify free and informed consent.

Agger, Ellen [Full text]

2. Physician conscientious objection and referral:

There has been much discussion about conscientious objection by physicians who do not feel they can provide PAD to their patients. I fear a loss of focus on the patient in this discussion and urge you to include in your recommendations that these physicians must refer their patient to another doctor or third-party referral agency that can provide access to PAD when the patient is eligible to receive it. Physicians must not be allowed to abandon their patients in perhaps their greatest time of need by refusing to refer them, if the physician himself or herself is not willing to provide PAD. That would certainly contradict the value and practice of "physician do no harm" that is accepted in our society.

3. Facility access to PAD:

Publicly funded hospitals, long-term care facilities, hospices and similar institutions must also be required to allow access of a physician who is willing to provide PAD, even if the institution's own doctors will not. An ill and dying patient, like the man with ALS who contacted my friend, is in no position to spend their final days "doctor shopping" or "hospital shopping." This could also prove impossible in small and rural communities, like the one I lived in for the last 15 years.

Alliance of People with Disabilities Who Are Supportive
of Legal Assisted Dying Society [Edited Video]

. . . Conscientious Objection

Carter recognized that nothing in its declaration would compel physicians to provide assistance in dying. The alliance submits that a comprehensive scheme should enable doctors to opt out, but only in a manner that imposes no burden on patient care and ensures continuity of care.

The protection of a physician's right to conscientious objection must not impair the ability of a patient eligible for physician-assisted death to access it. Conversely, where a physician's conscience favours the provision of physician-assisted death, no health care institution should be able to impede that physician's ability to provide that form of health care within or outside the institution. . .

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A Network of British Columbia Physicians [Full text]

We are a network of physicians in British Columbia (BC)1 who are deeply concerned about the significant risks that physician-hastened death poses to vulnerable patients, Canadian society at large, and the conscience rights of health care professionals.

. . . Further, we urge that strong, legally-binding, protective measures are needed to ensure that the Charter rights of physicians to freedom of conscience are fully protected./p>

Our concerns merit representation at policy level, and we respectfully submit the following two measures as being necessary and prudent in forming a legislative response to Carter v. Canada:

2) Legislation that articulates that physicians' rights to freedom of conscience to not be compelled to participate in PHD, includes the right to abstain from participation at any level (performing, being trained to perform, referral to any party.)

A system in which strict limits are enforced in protecting individuals and the public, is only possible if physician conscience rights are rigorously protected. No Canadian jurisdiction must be allowed to enforce mandatory participation at any level, including referral to a third party authority or organization. Coercion to refer, without due regard for clinical judgment, nullifies the value of a carefully designed process to determine appropriate eligibility for PHD. Patient access, patient protection, and physician conscience rights must be balanced to ensure patient safety.

A more balanced system would not mandate referral but rather require all physicians who encounter a request for PHD to inform the patient of all reasonable medical options, including the option of direct patient access to a separate central information, counselling, and referral service for PHD. If Canadian citizens determine that PHD should be funded as part of our healthcare system, it then becomes the shared responsibility of society in general to ensure access, and not the responsibility of any one physician or health care authority. There is no precedent for mandatory referral in other countries where PHD has been decriminalised, and there is evidence that allowing conscientious objection to PHD has not resulted in obstruction of patient access to PHD.

. . . Our position is grounded both in the SCC ruling itself and in medical codes of ethics that have been in place since the foundation of modern medicine. The SCC ruling specifies that: "nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid… a physician's decision to participate in assisted dying is a matter of conscience"

In stating that the SCC ruling does not "compel physicians to provide assistance in dying" and "simply renders the criminal prohibition invalid" for a "stringently limited, carefully monitored system of exceptions," the ruling is clear that PHD is to be the exception, and not the rule. There is therefore at most a "negative right" to not have PHD result in criminal prosecution in very limited situations in which patients meet SCC criteria and have a physician willing to perform PHD. The ruling does not imply a "positive right" for individuals to demand state provision of this procedure to all who request it. In contradiction to the SCC ruling, some physician regulatory bodies and PHD advocacy groups describe access to PHD as a positive patient right, and have even advised mandatory referral,  illustrating the almost inevitable push to expand these practices. The mere legal permissibility of a procedure is not sufficient to prove either a collective duty on the profession or an individual duty on a particular physician to ensure that any given patient is able to have access to such a procedure.

Risks to individual patients and society at large:

5) Individuals who oppose PHD being under-represented in the forming of policy and delivery of health services in a system that discriminates against their beliefs

10) Negative impact on the culture of medicine, due to decreased cultural diversity among practising Canadian physicians resulting from a lack of support for conscientious objection to PHD

Risks to individual physicians and physician trainees (i.e. medical students, residents) influence societal risks as policies that discriminate against or do not adequately protect the rights of physicians with conscientious objection to PHD will eventually result in a shift in the cultural and ideological landscape among medical practitioners:

1) Violation of physician Charter rights to freedom of conscience through coercion by provincial physician regulatory bodies or provincial health authorities for physicians with conscientious objection to PHD to perform or refer for this procedure. Compromising freedom of conscience not only harms physicians but also compromises patient care and erodes the fiduciary nature of the doctor-patient relationship. 

2) Violation of physician-trainee Charter rights to freedom of conscience through coercion by medical school faculties for medical students and residents to be trained to perform PHD, thereby coercing these trainees to perform PHD in the process.

3) Inappropriate discipline and/or punitive measures by either provincial regulatory bodies or medical school faculties for physicians or trainees with conscientious objection to perform or refer for PHD

4) Employment or training program entry discrimination for physicians/medical trainees with a conscientious objection to PHD, due to potential hiring/admission constraints at institutions required to provide PHD, referral for PHD, or training in PHD.

5) Physicians and trainees without conscientious objection to PHD experiencing greater burden of workload due to adverse recruitment and retention of physicians and trainees in fields of medicine most affected by PHD or in provinces where physician rights to conscientious objection are not adequately supported.

Legislative recommendations: We advocate for the following measures and safeguards as being essential to minimizing risks inherent to PHD, and consistent with both the February 2015 SCC ruling on Carter v. Canada and Canadian medical codes of ethics:

2) Legislation that protects physician freedom of conscience and professional judgment to abstain from referral or performance of PHD without fear of reprisal or discrimination, namely: a. Legislation that explicitly details that the conscience rights of physicians, physician trainees, and allied health care workers to not participate in PHD includes the right to not perform, be trained to perform or refer for PHD to any individual, organization, or governmental authority. b. Legislation that protects physicians, physician trainees, allied health care workers, institutions, and organizations who choose to not participate in PHD from discrimination, particularly individual employment or institutional funding discrimination.

3) Legislation that requires that assessment of eligibility for PHD be a carefully-designed system that involves the following safeguards – with priority on the creation of a separate central multidisciplinary service: a. A separate central multidisciplinary information, counselling, and referral service for PHD which patients may access directly without physician referral would best support patient autonomy and the standard set by the SCC that patients are assessed by physicians who are "properly qualified and experienced"33 in making assessments regarding capacity for voluntary consent. Such a service should be required to meticulously document that diagnosis, prognosis, and all other reasonable options have been discussed with the patient and that the reasons for the request have been carefully explored through counselling.

4) Legislation that protects patients from coercion, undue influence, or physician abandonment in the administration of PHD: a. In the case of physician-assisted suicide (or "patient-administered PHD"), requiring that the physician who writes the prescription for PHD be the on-call physician responsible for dealing with any complications resulting from ingestion. Other physicians (e.g. emergency room physicians) would therefore not be called on to "complete" unsuccessful attempts at PHD. A dispassionate witness should be present at the time of ingestion in order to prevent coercion or abuse by another party. b. In the case of euthanasia (or "physician-administered PHD"), requiring that the physician who administers lethal injection be present at the time of death and remain with the patient until death has been documented, in order to avoid patient abandonment in case of complications from PHD.

Direct patient access, by means of a separate central information and referral service or by application to a court of law, shows the most promise for ensuring both patient safety and appropriate access to the procedure. Finally, the protection of physician Charter rights to freedom of conscience--including the right to abstain from referral for PHD--is essential to developing meaningful safeguards.

Since the SCC has placed its confidence in the ability of physicians to determine who may qualify for PHD, it is incumbent upon governments and regulators who are responsible for patient safety to give these same physicians the freedom to apply professional judgment without coercion or undue interference. We understand that the rationale for removing the criminal prohibition against PHD was carried out with the good intent of affirming the rights of a small minority of individuals in Canada to have their fear of harm and suffering be addressed in a manner consistent with their personal autonomy and wishes.

As the Special Joint Committee on Physician-Assisted Dying deliberates options presented on a legislative response to Carter v. Canada, we simply ask that the rights of vulnerable patients, the rights of the Canadian public at large, and our personal and professional autonomy as Canadian physicians, be likewise upheld in addressing legitimate fears of individual and societal harm.

Bracken, Susan [Full text]

If a doctor refuses to provide this service, I want him/her to have a place where a referral can be made (another doctor, or a medical clinic or panel set up for this purpose). . . . . . I want all hospitals and other facilities that are funded by taxpayers to be made to follow the law, or provide an alternative place and easy access for their patients. . .

Brienen, Arthur-Leonard [Full text]

6.Doctors have the right to object; if they can provide reasons that will do no injustice or addduress to would be grieving survivors, under penalty.

7.Publicly funded healthcare should be available for people who request a physician assisteddeath whether it be in hospital, in a care facility, or at home.

BC Civil Liberties Association

Brief [Full text]

Conscientious refusal should result in a transfer of care:

• The BCCLA supports a transfer of care, rather than effective referral.
•  While physicians are not required to offer assisted dying, they should be required to provide information to patients according to the established norms of informed consent law.
•  The conscientious refuser should be under a duty to immediately notify the patient of their objection, and to immediately inform a third party (for example, a hospital, local health authority, or the provincial or territorial regulatory college) of their objection (with consent of the patient). The third party should be placed under a responsibility to contact the patient as soon as possible to provide a referral to a willing physician. This is consistent with the practice under Québec's law.

Oral submission [Edited Video]

. . . Finally, I'd like to say a word about conscientious objection. The BCCLA stands for freedom of conscience and has fought for it regularly in the courts. As we know, physicians are not required to provide physician-assisted death. The solution we would propose is that physicians should have to notify some third party body, whether it's the hospital or the health authority, of their refusal - not provide an effective referral, but simply notify, with the permission of a patient, that they do not want to carry out this service. In that way, there can be a transfer of care for the patient. . .

Ms. Julie Dabrusin: You had suggested a system when we were talking about conscience rights. You were suggesting a system where a physician would be able to tell a third party that they had objected.

Mr. Josh Paterson: Yes.

Ms. Julie Dabrusin:  And simply that they had objected. I was just wondering if you could maybe flesh that out a little bit more as to how that system would look? So who would be this third party? What would that look like?

Mr. Josh Paterson:  Well, this, of course, we think, is actually a matter for the provinces, because it's about regulating access. Quebec provides an excellent example, where, and essentially we endorse the model that Quebec uses. In Quebec it's a local health authority. It would be up to provinces to figure out what is the appropriate body to notify. The key is that, so perhaps it's the hospital, perhaps its, you know, in British Columbia we have regional health authorities. Or another body that could be designated.

but the key is that then that body would be under an obligation, to, as quickly as possible, to contact the patient, the patient having given consent for that information to be transmitted to them. And that body would then be in charge of setting that patient up with someone who can provide the service. It gets the doctor out of having to make an act of referral. They simply have to tell someone that they're refusing.

We don't think that's too much to ask. The right to conscientious objection, or, rather, the interest in conscientious objection is a carefully qualified interest. It isn't absolute. And we think that forcing a physician to engage in an act of referral would be going too far, but that  this is an accommodation that would serve everyone.

Ms. Julie Dabrusin:  Okay. Thank you. And you did mention that there is that privacy issue about the patient having to give consent for that information to go to the third party. Do you foresee any stumbling blocks in there? Is there anything we should be watching for in that part of the procedure in order to ensure that there's proper information for the patient that's available?

Mr. Josh Paterson:   We think it would be a matter of simply asking the patient. Presumably the patient is in a conversation with the doctor who is refusing, a doctor who, under the norms of informed consent, would have had to provide information about the treatment. We would not excuse doctors from that obligation.

And that it would simply be a matter of saying to the patient, “May I indicate my refusal to this body?” And if they say yes, then the doctor can do that. If they say no, then the doctor doesn't have the permission to make that indication. . .

Discussion of Canadian Medical Association Proposal [Edited video]

Hon. Judith G. Seidman: You've all talked about conscientious, the right of conscientious objection for the physicians, and clearly the question that comes forward is what is the best means is to ensure equity and access to assisted death for patients who want it, plus, of course,  reconcile that with the Charter rights of physicians with their conscientious objection.

The  CMA called for the creation of a separate central information, counselling, and referral system in their 2015 report on this subject, and I'm wondering what your reactions would be -  all three of you I put that question to you, to that kind of an approach. 

Ms. Wanda Morris (Dying With Dignity):  Our primary concern is that patients not be abandoned. And if that recommendation effectively allows for care to be transferred and patients to receive treatment, then we support it.

We do have concerns, though, about an independent agency without access to confidential information about who is providing assisted deaths to be able to carry out that function.  We're also really concerned that this shouldn't be outsourced outside of the medical system where an independent group perhaps has to fundraise to provide that critical service.

Hon. Judith G. Seidman: Mr. Paterson.

Mr. Josh Paterson:   Thank you. I'd echo everything that Ms. Morris just said.

And I would simply add to that that whatever body is there has got to be able to have the capacity to respond quickly. And, you know, this isn't something, where there should be backlogs and  “We're not going to get to it this week.” This needs to be done fast. So, whatever agency is there has to have a really robust responsibility to put the wheels in motion to ensure that the patients can get the care that they've asked for.

Hon. Judith G. Seidman: Mr. Cameron

Mr. Jay Cameron (JCCF):  I think that such a response is effective. I think it's favourable. And if properly implemented, I think it's the best solution.

British Columbia Humanist Association [Full text]

Guaranteed access

. . . Health care institutions (including but not limited to hospitals, hospices, residential or long-term care facilities) that receive public funds should be required to allow physician assisted death within the institution. Institutions that refuse should see their funding withdrawn. This is not just a hypothetical concern. Since Quebec legalized physician-assisted dying, numerous hospices have proclaimed that they planned to refuse to provide the service. This institutional boycott threatens to create a larger discrepancy in service than already exists in the provision of abortions in Canada. Such a challenge to access must be pre-empted by ensuring Canadians have access to their rights under the Carter decision.

No conscientious objections

Similarly, because of the risk that access will be jeopardized, we do not support so-called "conscientious objection" clauses that permit physicians and pharmacists to opt-out of doing their jobs because of their personal beliefs. Medical professionals have a responsibility to respect their patients' autonomy and their dignity. Therefore the right of an individual to receive a physician-assisted death outweighs any personal, ethical or religious objections of a medical professional.

If allowances for conscientious objections are permitted, such allowances must be rare, unrelated to belief in a deity (or deities) or other supernatural entities, and applied in a manner that places first priority on the patient's wishes. Objections should not interfere with or obstruct a patient's right to a physician-assisted death. Physicians and pharmacists should be required to provide information about physician-assisted dying according to the established norms of informed consent law. Physicians who are not prepared to provide physician-assisted death and pharmacists who are not prepared to fill prescriptions for life-ending medication should be required to provide effective and timely referral. Patients in remote areas should be guaranteed equal access as those in major cities and should not be required to travel to obtain a physician-assisted death. . .

Brooks, Jeffrey [Full text]

. . . I support the notion that no physician should be forced against his beliefs or conscience to administer physician-assisted dying. That is his/her right. But in those cases, I support the position of BCCLA that recommends such physicians immediately, without waiting, make their refusal known to their professional organization, the institution administration or some other body. This would not amount to a referral which might be against the conscience of the physician (or other health care provider) but would assure timely, unencumbered access for the patient requesting physician-assisted dying. . .

Brzezicki, Barb [Full text]

6. Doctors have the right of conscientious objection but must provide information and effectivereferrals (or transfers of care) to an institution, independent agency or other provider. DWDC strongly believes in choice, both for the patient and the physician. While physicians may refuse to provide PAD for reasons of conscience, they must not abandon patients. Physicians who oppose assisted dying must be required to refer patients who request it to another doctor or a third-party referral agency. . .

7.Publicly funded healthcare institutions, including hospitals, hospices and long-term carefacilities, are required to provide physician-assisted dying on their premises.  All publicly funded healthcare institutions must allow PAD on their premises. If no doctors on staff are willing to provide, an external doctor must be permitted into the hospital to provide the service. This policy is especially relevant for small communities where healthcare options may be limited. For example, some communities may only have Catholic-affiliated hospitals or hospices nearby. If those institutions refuse to provide PAD on their premises, then access to PAD will be heavily restricted in the communities they serve. Even in larger centres, a patient may be rushed to an emergency department at a Catholic hospital. Moving the patient to a non-denominational institution would cause unnecessary stress and may not be possible depending on the patient's condition.

Canadians Advocating for Ethical Hospice Care [Full text]

2. PROFESSIONAL ETHICS /MORAL CONVICTIONS –

Health professionals practice according to a code of ethics. Nurses for example are accountable for "Promoting Health & Well-Being" inclusive of ongoing advocacy for a full range of services related to whole person palliative care. Any health professional who is asked to be involved in PAD or to assist with someone's suicide is going against the ethical principles upon which they are trained and have practiced for centuries. (I am referring here both to the ethical responsibilities of advocacy for health and well being according to the definition of health and also to the duty to do no harm).

Additionally, it is important to note that being asked to make a referral to someone who will euthanize or assist with lethal medication may be seen as aiding and abetting and can be equally traumatizing for those whose moral convictions are in opposition.

Recommendation

All levels of government legislation and also professional regulation need to respect the rights of health professionals to conscientious objection re: assisting with PAD and assisted suicide under the Canadian Charter of Rights & Freedoms.

Legislation must respect the health professionals' right to adhere to their professional code of ethics and moral convictions. The Supreme Court has provided some guidance on the issue of rights to conscientious objection to involvement.

However, the committee needs to be attentive to the rights of physicians, nurses and any other professionals receiving E & AS requests to decline direct referral to someone performing the administration of lethal medication based on their professional ethics and moral convictions.

Canadian Bar Association [Full text]

Resolution 15-01-A

3. urge provincial and territorial governments and regulatory bodies of physicians and other health care professionals who may be involved in physician-assisted dying to review and, if necessary, enact legislation and standards of practice to address necessary aspects of implementation, including appropriately reconciling the Charter rights of patients, health care professionals who conscientiously object to participating in physician-assisted dying, and health care professionals who are willing to participate in physician-assisted dying.

Resolution 15-02-M

d. Neither a competent patient nor a SDM should have the right to demand treatment that is not offered because the health provider, acting in accordance with ethical and legal obligations, determines such treatment not to be clinically indicated, medically appropriate, or in the patient's best interests; 

Canadian Cancer Society [Edited Video]

Mr. Murray Rankin: I know you've been reluctant to jump into the physician-assisted dying part of the equation, but I'm going to push you anyway, if I may. This is a requirement of the Constitution. As my colleague has said, we're here to figure out how to implement the court's decision.

So, given the experience the Canadian Cancer Society has with people suffering, I would presume that you take the position that we ought to be moving forward with doctors, perhaps with a conscientious right not to proceed, but that generally this service ought to be available end of life. I see you nodding.

In which case, do you agree that publicly funded health care institutions like hospitals and hospices should be required to provide physician-assisted dying on their premises?

Mr. Gabriel Miller: I won't speak to the question of where, because I wouldn't be speaking for anyone except for myselft, and that's of no use to you whatsoever, I promise you.

But I guess what I would say is that, we need to consider, our view is that end-of-life care needs to be considered as medically necessary care. We have a principle in this country that, people deserve access to that, just by virtue of being Canadian, and nothing more, including their ability to pay. It seems, certainly, that as a result of the court's decision, this will now be part of the spectrum of care available to Canadians, and access to that care should not depend on people's pocketbooks.

Canadian Civil Liberties Association [Full text]

4. Reconciliation of Rights

CCLA recognizes that while assistance in dying is intended to benefit the individual who wishes to end his or her life, those asked to provide assistance are also entitled to constitutional protection. Freedom of religion and conscience are protected by the Canadian Charter of Rights and Freedoms and the Court's decision in Carter explicitly recognizes that the Charter rights of patients and physicians will have to be reconciled.

Health care providers should not be required to assist individuals in dying if doing so would be contrary to their religious or conscientiously-held beliefs. At the same time, as noted above, inequality of access to assisted dying is a genuine and significant concern. The conscientiously held objections of providers cannot bar their patients' access to medical assistance.

CCLA's position is that providers who object to assisting a patient end their life must provide referral information that is accessible to the patient and must facilitate any transfer of the patient's care. The Canadian Medical Association (CMA) has suggested that "a system should be developed whereby referral occurs by the physician to a third party that will provide assistance and information to the patient". CCLA takes the position that this is an acceptable compromise provided the third party can also provide an effective referral to another physician. However, if such a scheme is not established, CCLA believes that physicians should be required to provide an effective referral to patients.

In addition, health care providers or institutions that engage in tasks that are only remotely connected to the provision of assistance in dying (e.g. completion of basic paperwork, preliminary testing, etc.) should not, as of right, simply be able to opt out of providing these services for patients seeking assistance in dying. Where others can perform the task or an accommodation can be made without impacting on patient care, this should certainly be done. If this cannot be achieved, however, the patient's access to a service should, in CCLA's view, take precedence.

The reconciliation of patient and provider rights will be a matter for provincial licensing authorities (for physicians and other regulated health professions) to address clearly and decisively. Healthcare institutions must also consider the question of refusals and ensure that patient access is prioritized and transfer of care achieved as smoothly as possible. As previously stated, the provision of assistance in dying allows individuals some measure of control over when and how they die, and is not a stark choice between life and death. In order to ensure equality of access, publicly funded hospitals that provide palliative care or other end of life treatments should similarly provide assistance in dying, regardless of any institutional religious affiliation. If there are no physicians at such institutions who are willing to provide the service, the requirement for an effective referral would be engaged.

Canadian Conference of Catholic Bishops [Full text]

Guarantee the right of every health-care provider and all health-care institutions not to be coerced into providing, facilitating or abetting assisted suicide, nor forced into referring patients to physicians or institutions that provide assisted suicide or euthanasia.

(Attachment: Submission to the Expert Panel) 

5. On safeguarding freedom of conscience and religion, the Catholic Church believes and teaches:

"Freedom is exercised in relationships between human beings. Every human person, created in the image of God, has the natural right to be recognized as a free and responsible being. All owe to each other this duty of respect. The right to the exercise of freedom, especially in moral and religious matters, is an inalienable requirement of the dignity of the human person. This right must be recognized and protected by civil authority within the limits of the common good and public order." - Catechism of the Catholic Church, n. 1738

It is the conviction of all the Bishops of Canada, together with the other clergy and members of the consecrated life, united with our Catholic faithful, that our country must at all cost uphold and protect the conscience rights of the men and women who work as caregivers. Requiring a physician to kill a patient is always unacceptable. It is an affront to the conscience and vocation of the health-care provider to require him or her to collaborate in the intentional putting to death of a patient, even by referring the person to a colleague. The respect we owe our physicians in this regard must be extended to all who are engaged in health care and work in our society's institutions, as well as to the individual institutions themselves.

Canadian Conference of Catholic Bishops & Evangelical Fellowship of Canada [Full text]

. . . In light of the recent decision of the Supreme Court of Canada, we urge federal, provincial and territorial legislators to enact and uphold laws that enhance human solidarity by promoting the rights to life and security for all people; to make good-quality home care and palliative care accessible in all jurisdictions; and to implement regulations and policies that ensure respect for the freedom of conscience of all health-care workers and administrators who will not and cannot accept suicide or euthanasia as a medical solution to pain and suffering. . .

Canadian Council of Imams [Full text]

2. Conscience-Protection for Physicians and Faith-Based Care Facilities

Physicians and faith-based care facilities should not be compelled to participate in physician-assisted dying if their conscience, faith or personal values do not allow for the taking of human life.

While some Muslim doctors may not want to facilitate physician-assisted dying in any way, having the ability to refer such requests to another physician without participating in the procedure should be sufficient to reconcile the rights of physicians with the rights of patients. Muslim health-care facilities will likely not want to facilitate or participate in physician-assisted dying in any way.

Recommendations:

The level of disengagement from physician-assisted dying should be at the discretion of individuals and faith-based care facilities.

All health care facilities should be required to disclose their policy on physician-assisted dying during the admission process in order to assist patients and their families in making informed decisions on the matter. If a patient chooses physician-assisted dying while admitted in a faith-based care facility that does not perform the procedure, the facility should provide any reasonable assistance necessary to transfer the patient to another facility that can facilitate their request.

Information on facilities offering physician-assisted dying should be made publicly available, particularly for those patients whose physicians do not wish to make referrals for physician-assisted dying.

Oral submission [Edited video]

Imam Sikander Hashmi (Spokesperson, Canadian Council of Imams):  Physicians and faith-based care facilities should not be compelled, in our view, to perform this procedure if their conscience, faith, and personal values do not allow for the taking of life. . .

Mr. Harold Albrecht (Kitchener—Conestoga, CPC): My first question is directed to Mr. Hashmi. Thank you, Mr. Hashmi, for drawing attention to what I believe is the foundational concept that all of us, as committee members, need to have, and that is the basic intrinsic dignity of all human beings, regardless of deformity or disability.

We are blessed to have many Canadian doctors of many faiths and I'm sure many in your community are medical physicians. Would you care to comment on what degree of conscience protection you would like to see in the legislation, given the fact that we have the Carter decision? We would rather it wasn't there, but it's there.

What kinds of conscience protections would you like to see this committee include in the recommendations to our government?

Imam Sikander Hashmi (Spokesperson, Canadian Council of Imams):  Thank you. We would say that there should definitely be protection for individual physicians who want to avoid any type of participation in this type of procedure. And would also extend that to health care facilities which are faith-based to ensure that.... Again, it's a balance of rights, right?  So those who want to stay away at whichever degree they feel is important for them, and their faith, and their conscience, that they have the ability to do so. . .

Ms. Julie Dabrusin:  I had one question to begin for Imam Hashmi.  And, I thank you for outlining for us what you would see as a process under Carter. But one question I have for you is an issue that we've seen come up is the issue of effective referrals. So, if you saw a doctor who might conscientiously object because of faith issues, or any others, we had a suggestion from the BC Civil Liberties Association that one option would be for the doctor to not refer to someone else but to report to someone within the hospital setting, “I have refused, I have refused or I have objected to a treatment”. That's all that they do, and then someone would step in.

Does that seem like a system that would be agreeable to you?

Imam Sikander Hashmi (Spokesperson, Canadian Council of Imams):  I think so. I mean, again, we have to respect the rights of the doctors or the health care providers with regard to their beliefs and their conscience, but at the same time we have to respect the Carter decision as well and the individual rights of the patients.

So, in that case, yes, if a physician went to their supervisor or whomever within the organization and told them, “This is the request that has come to me, now you take care of it”, I think that should be fine.

And also in the proposed end-of-life team that you're talking about, if a request was made, then this team could go and present options. And I think for many doctors, at least from the Muslim faith, that perhaps would not present a problem, because they're talking about the options that are available and they're not talking about just one option, which is physician-assisted death.

So I think, I don't really foresee any issues with regard to that. . .

Mr. Mark Warawa:   Just a clarification, in the conscience issue, you said that physicians of faith and institutions of faith should not have to be involved. Are you saying participate and not having to refer?

Imam Sikander Hashmi (Spokesperson, Canadian Council of Imams):  No, they would refer, but we're talking about participation in the practice.

Canadian Federation of Nurses' Unions [Full text]

. . . provincial/territorial government legislation or regulation (preferable) and/or professional standards should also specify that health care professionals can decline to actively participate in the provision of professional health care services intended to hasten a patient's death, in accordance with an express request from the patient (in contrast to health care services administered for palliative reasons) on the ground of conscientious objection, if they determine that it does not accord with their personal values.

Canadian Hospice Palliative Care Association [Edited video]

Ms. Sharon Baxter: . . . The following factors should be taken in consideration. Allied health care professionals, must be protected, including physicians and nurses and other allied professionals, in such a way that their decisions are respected and alternative options presented should they choose, if they choose not to administer a physician-assisted death. All institutions and physicians should be given the option to opt out of providing physician-hastened death, granted they are willing to provide a referral to this service. I echo some of the comments that Carolyn made about the transition, transfer or transition to another setting.

In the palliative care units in hospitals, there will be physician-hastened death. They may not have those people do it; maybe somebody else will come in to do it. And in home-based programs, I can see it happening quite easily. In our residential hospices, of which there are 80 in this country, their process is around not to hasten death, and they're asking for a site exemption.

And keep in mind that most of them don't receive much government funding, and that they are charitable funded, to the most percentage, and they are actually wanting to make sure that the community that raises the money for residential hospices, are actually following their wishes. . .

. . . I just have a few bullets.

The CHPCA is calling on the federal government to consider a national federal strategy or framework for hospice palliative care that would work toward  . . . the protection of Canadian health care workers in sites in the hospice palliative care field, including the option for them to opt out of providing physician-hastened death should they choose to, but that they would refer to the appropriate place . . .

Hon. Judith G. Seidman:  . . . Ms. Baxter, if I may ask you, you mentioned there are 600 hospices across the country, I believe.

Ms. Sharon Baxter:  600 hospice or palliative care programs, either home-based, hospital-based, or hospices, and only, of those, 80 are residential hospices.

Hon. Judith G. Seidman: Okay.  Thank you. That's very helpful.

With that in mind, thinking specifically now about Bill 52 in Quebec, I'm wondering if there is anything you could share with us already in terms of how the hospices are reacting to Bill 52, and if there is something we might learn from that right now.

Ms. Sharon Baxter:  Thanks for asking that question, because I didn't fit that in.

So, the 29 residential hospices or residences in Quebec formed an alliance and have gone to the provincial government and have been given an exemption, for sites, so it's sort of something for you all to think about if you're looking at site exemptions for hospices. That was granted in Quebec. Interestingly, one of the hospices medical adviser has ALS, and pleaded to them to let her die in her own organization, and they have agreed that when the time comes, they will perform the physician-hastened death in that one hospice. Which sort of throws everything out when you have, you know, all the hospices standing together and then this one, but it was made on, the right decision for them.

But generally, the hospice programs in Quebec, because $2  to $3 million of their money is raised by, from their communities, not government funded. They do get some government funding, but, like, we're talking half a million dollars over a $3 million budget. They have to be connected to their communities, and that's where they get their money.

I think that we'll see how this all goes over time. I mean, right now they are standing firm in Quebec. The rest of the provinces are challenging themselves. The boards of directors are meeting now and later, not knowing, you know, what the legislation is going to tell them. They're trying to figure out whether they'll generally saying that they would prefer to transfer out, but we'll see where that all goes. And that's just the residential hospices.

The rest of the hospice and palliative care programs are really quite, knowing that if they give the best care possible and a patient wants physician-hastened death, they will refer to the right people.

Mrs. Brenda Shanahan:  The piece that you mentioned about  the hospices in Quebec had gathered together to opt out of Bill 52, but that when push came to shove, one of their own members wants to die in hospice, and that's what I, . . . I mean, we love hospices. I think that's the ideal place between home unsupervised, and you know, an emergency room gurney. For people to be in  hospice they're already receiving the palliative care. Why wouldn't they want to have access - and it's a choice - they may not take it - but if they want it, why wouldn't they have access to that in hospice?

Ms. Sharon Baxter:   You know it's a case that the hospice people believe in a philosophy that they don't hasten death, and this is something different. They do believe that their patient and patient-centred care has to be prominent, and be, you know, they're not saying they won't refer when . . .

It is a difficult question. Every one of the hospice programs in this country is struggling right now with their boards of directors, their staff, and their volunteers. The one in Ottawa, the May Court Hospice, has 400 volunteers. These people volunteer their time, their money, and their energy because they believe in the philosophy of hospice. And are saying, "You're going to allow somebody to die here?" Whereas they could send those patients to the Civic Hospital or whatever.

I'm not sure what the answer is. I don't have the answer. You guys are going to have to come up with some answers somewhere.

Re: Referral [Edited video]

Hon. Judith G. Seidman:   Okay, so that leads actually lto my next question, to which Professor Ells and Ms. Baxter and perhaps even Dr. Smith might respond to, and that has to do with the referral process itself and the transfer that everybody has talked about.

I'd like to have some explanation about how you see that working. So, for example, when the British Columbia Civil Liberties Association were here yesterday, they said, the solution they would propose was that physicians should have to notify some third-party body, whether it's the hospital or the health authority, of their refusal. Not to provide an effective referral but simply notify, with the permission of a patient, that they do not want to carry out this service. And in that way there can be a transfer of care for the patient, which is what happens in Quebec right now.

But, how would that work? Is it left to the provinces? Is it the professional regulatory bodies that are going to make some kind of systematized approach to this? Is this something that should be in the federal framework? How do you see that happening?

And maybe I could start with . . . Dr. Smith.

Dr. Derryk Smith (DWD):  Well, if you look at how referrals are made now, it does not involve any formalized bodies in any of the provinces. Family doctors make referrals to surgeons, psychiatrists, and so on, and it's all pretty informal, so if you want a system put in place, there is nothing to build on currently.

I suspect that what's going to happen is that there will be consumer groups spring up. I know my organization is interested in helping doctors who are interested in this form organizations so that it may become well known which doctors are going to be involved and which ones aren't. Which is the model used for most abortion services in Canada currently. I would be reluctant to institutionalize a referral system, but, on the other hand, we have to make sure that it's the patient's principles, of autonomy and their needs that are put at the forefront, not what institutions and doctors may wish to do.

So we need to have some public way of getting referrals from doctors who do not wish to participate so that patients' care is continuous and that people don't get dropped, because this is a critical stage in their life. This is not a stage in your life when you want to be digging around trying to find a new family doctor. So there needs to be some thought given to how that's going to be operationalized, and I don't have a ready solution for you, I'm afraid, at this point.

Hon. Judith G. Seidman: Thank you. I appreciate that, because that's exactly the reason for the question, is the point you just made, and that it is that we need to think about the patient. It needs to be patient-centred, so we need to ensure access when a physician decides he can't do it. . .

Dr. Derryk Smith (DWD):  I'm very much in favour of standards. I think there should be rules such that there must be a smooth transfer of service from doctors who do not wish to participate to those who will. And that's a heavy burden to put on doctors who object, but it's important, because these are vulnerable people at the end of their life who must not be left dangling because their doctor does not want to provide this service to them. 

So principles, yes, specific regulations, I don't know.

Ms. Sharon Baxter:  I just wanted to respond to that.

We have issues about transferring from one setting of care. In this country, it's terrible. Getting from acute care into long-term care or home care or getting out of hospital and into home care.

We don't want that to happen at this stage, so what we'll need to do is make sure that the onus to refer is on that person, the physician or whoever, and that they follow through, and follow through in a timely manner.

I've talked to the woman who runs the hospice program in Oregon. And they're 16 years in, so they've worked out a lot of their issues. Even though the administration of the medication is patient and the family, there is a physician there, and there is a pharmacist that has to prescribe and whatnot. And what they've done is the hospice program says their goodbyes to the patient and the family, and then a group like Dying With Dignity that's a state-run organization comes in and actually does the thing.

I'm listening to what Derryck is talking about. I think we need to make sure that we have some safeguards or some organization that we can quickly go to and count on to be able to help us with the referrals.

Hon. James S. Cowan:  Can I ask Professor Ells just to comment briefly on that?

Dr. Carolyn Ells:  Referrals or transfers take place at two different levels. One is between physicians, the attending physicians for the patient, and another may take place between institutions. The between physicians is not so problematic, other than requiring the transfer firmly, timely and fairly. That's already in their codes of ethics. That's already in place.

But institutions will, should be required to know who is available in their institution to provide these things. Institutions who may make conscientious objections should-

Hon. James S. Cowan:  But I don't understand how.... I can understand how an individual can have a conscientious, but how does a building have a conscientious objection? How does it have an ethical-

Dr. Carolyn Ells:  It's not quite as comfortable, but most of these, hospital institutions, like many institutions, have missions, visions, values, statements, and their values ought to drive, if they're an ethical, robust organization,their values ought to drive the strategic plan and how they roll out their policies, how they provide their services.

I'm aware of, for instance, a particular small Catholic hospital that opened up a large palliative care unit in Quebec - poor timing - and then had to struggle with, do we eliminate this important service for the people in our community or not because of their own conscientious view.

Canadian Medical Association [Full text]

CMA: Principles Based Recommendations for a Canadian Approach to Physician Assisted Dying

5. Moral opposition to assisted dying

5.1 Institutional objection by a health care facility or health authority

• Hospitals and health authorities that oppose assisted dying may not prohibit physicians from providing these services in other locations. There should be no discrimination against physicians who decide to provide assisted dying.

(Letter dated 4 February, 2016)

The Special Joint Committee was incorrectly informed that the CMA “has essentially said there should be a requirement to refer.” This statement is categorically untrue and misrepresents the CMA's recommendations.

Below is an excerpt of the relevant section of the CMA's recommendations:

5.2 Conscientious objection by a physician

• Physicians are not obligated to fulfill requests for assisted dying. This means that physicians who choose not to provide or participate in assisted dying are not required to provide it or to participate in it or to refer the patient to a physician or a medical administrator who will provide assisted dying to the patient. There should be no discrimination against a physician who chooses not to provide or participate in assisted dying.
• Physicians are obligated to respond to a patient's request for assistance in dying. There are two equally legitimate considerations: the protection of physicians' freedom of conscience (or moral integrity) in a way that respects differences of conscience and the assurance of effective patient access to a medical service. In order to reconcile a physician's conscientious objection with a patient's request for access to assisted dying, physicians are expected to provide the patient with complete information on all options available, including assisted dying, and advise the patient on how to access any separate central information, counselling and referral service.
• Physicians are expected to make available relevant medical records (i.e., diagnosis, pathology, treatment and consults) to the attending physician when authorized by the patient to do so; or, if the patient requests a transfer of care to another physician, physicians are expected to transfer the patient's chart to the new physician when authorized by the patient to do so.
•  Physicians are expected to act in good faith, not discriminate against a patient requesting assistance in dying, and not impede or block access to a request for assistance in dying.

A second area at issue is with respect to the information provided to the Special Joint Committee during its tenth meeting in response to the CMA's testimony that access would not be constrained based on a system that does not impose mandatory referral requirements on physicians that may conscientiously object. As set out in the CMA's recommendations, physicians would be required to provide their patient with information on all options available including advising their patients how to access a separate central information service. Further, the CMA clearly outlines objecting physicians' positive - and well-accepted - obligations not to abandon their patients and transfer care at the patient's request.

The CMA's member surveys indicate that approximately 30% of physicians will provide assisted dying following the Carter ruling. While this may seem like a minority, in actuality it represents more than 24,000 physicians. Further, this proportion significantly exceeds the proportion of physicians that participate in assisted dying where it is in place in other jurisdictions. In the Netherlands this figure is 12%, in Belgium it is less than 2.5% and in Oregon it is less thBased on the experiences in other jurisdictions, it is the CMA's position that access will not be impeded based on the proportion of physicians that may choose not to participate based on conscience. We must re-emphasize that the arguments being advanced to suggest otherwise are unnecessarily creating conflict and forcing legislators and regulators to take a decision based on a false dichotomy. . .

Oral Submission [Edited video]

Dr. Cindy Forbes:  . . . I would like to flag two critical issues for the committee's consideration. Both issues will be central to ensuring effective patient access.

These are, first, how can we ensure that the legislative and regulatory framework achieves an appropriate balance between physicians' ability to follow their conscience and patients' ability to access physician-assisted dying? And secondly, how can we ensure that we emerge with a consistent, pan-Canadian framework? . . .

. . .This last issue, that of conscientious objection, is one we would like to discuss in more detail, as it is of particular concern.

I will now turn the microphone to my colleague, Dr. Jeff Blackmer, to discuss this issue.

Dr. Jeff Blackmer
(Vice-President, Medical Professionalism, Canadian Medical Association):  Thank you, Dr. Forbes, thank you, committee members.

Ensuring effective patient access across Canada in part will depend  on how this issue will be addressed. I would like to point out that a key focus of the CMA's work has been to ensure that both physicians and the patients for which we care are represented in the overarching regulatory and legislative response to the Carter decision. As it remains in society, assisted dying is a difficult and controversial issue for the medical profession. It must be recognized that this represents no less than a sea change for physicians in Canada. As the national organization representing physicians, I cannot underscore enough the significance and the importance of this change.

As we have mentioned, the CMA has extensively consulted physicians before and since the Carter decision. Our surveys and consultations indicate that approximately 30% of physicians indicate that they would provide assistance in dying. It's important to note that for the majority of physicians who will choose not to provide assistance in dying directly, providing a patient with a referral will not be an issue for them. They will not consider it to be a violation of their conscience or of their moral code.

For other physicians, however, making a referral for assisted dying would be categorically, morally unacceptable. For these physicians, it implies forced participation procedurally that may be connected to, or make them complicit in, what they deem to be a morally abhorrent act. In other words, being asked to make a referral for assisted dying respects the conscience of some physicians, but not of others.

Part of the obligation of government and stakeholders is to ensure effective patient access by putting in place sufficient resources and systems. The CMA's framework accounts for differences of conscience by recommending the creation of resources in order to facilitate that access. . .

Hon. Serge Joyal:  Dr. Blackmer I would like to come back to Dr. Forbes' statement that you made in your opening remarks, which is troubling to me.

Which is that 30% of the physicians that you have canvassed have answered that they would provide physician-assisted dying.  It means that 70% won't. While the Supreme Court has stated very clearly that a person has a right, according to section 7 of the charter, to request assistance from a physician.  You, you have to reconcile the freedom of thought, or the freedom of conscience, of a doctor or a physician under section 2(b) with section 7.  Which one prevails in such a case? Could you be very clear on what is your position is in relation to a physician that would feel hurt in his or her conscience if he or she would be compelled to provide assistance in dying, and what is the responsibility of that physician in relation to advise or to refer the patient to a proper service or proper information so that that person could seek the support it needs to get in the circumstances?

Dr. Cindy Forbes: Thank you.  That is essentially one of the main issues that we've been dealing with. I think it would be important to actually focus on what we feel is the responsibilities of the physicians. And we feel that those physicians who are not willing to provide the service and who may feel that a referral is also against their moral beliefs, they do have a responsibility, and that would be to advise the patient on all of their options -  have the conversation that we've talked about on all end-of-life options, including physician-assisted dying, and to make sure the patient has the information they need to access that service.

And, when you mentioned that only 30% of physicians are willing to provide the service, I think you have to look at we're expecting that less than 3% may actually choose this option. We have about 82,000 member physicians in the Canadian Medical Association, so you're actually talking about a large number of physicians.

So then you're really talking about distribution and access to care in different regions. I think it helps to put it into perspective, and I know Dr. Blackmer wants to comment as well.

Dr. Jeff Blackmer:  Thank you.  So I think it's absolutely critical to recognize that 30% represents 24,000 Canadian physicians. I can sit here today in front of this committee and guarantee that from simply a numbers perspective, access will not be an issue.

It's really about connecting, as Dr. Branigan has already indicated, it's about connecting the people that qualify for assisted dying with the providers that are willing to undertake assisted dying with that patient. The whole issue of connecting access with the right to conscientious objection is a false dichotomy. The two are not interrelated. In fact, we have a very small percentage of members who said we feel very conflicted about the obligation to refer; however, the entire rest of the profession says even though they may not share that view, we will fight for your right to be able to not have mandatory referral.

So if you have a tiny percent, if you have a very small percentage of the profession, a very small percentage of patients actually requesting assisted dying, that is not going to any way impact access.

And the final point I would make on that, and I think it's a critically important one,  no other jurisdiction in the world has mandatory effective referral. None of the jurisdictions that currently allow either assisted dying or euthanasia have mandatory effective referral.  Access is not a problem anywhere. I can guarantee, on behalf of the medical profession, that access will not be a problem because of respecting conscience rights. We still have work to do in rural and remote areas.  That's another issue.

Hon. Serge Joyal:  Will that be part of the instructions or interpretation that you will provide to the medical profession in terms of the provincial colleges of doctors, you know, who have the responsibility for déontologie and ethics, in relation to what is the role in relation to physician-assisted dying?

Dr. Jeff Blackmer:  They're very clear of our views on this issue, yes. . .

Mr. John Aldag: . . . If we start looking into extending the ceiling on things—if we start exploring age, incompetency, and other factors—at what point does the support from the body represented by the CMA start to shift? It really is that continuum along restrictive to permissive, and I am just trying to get a sense of where the body is at and where we may be able to go and still maintaining support.

So any comments on that would  . . .?

Dr. Jeff Blackmer:  . . . Thank you very much for that question. And we did actually explore that a little bit with our membership. Not ins a very granular way, but when we asked them what your level of support would be overall, we came up with a number of around 30%.

Once we started to add in some additional factors - so, for example, if the pain and suffering is purely psychological versus physical as well - the support drops. Once we add in a non-terminal versus a terminal illness, the support drops again. And so you can see that the level of discomfort of physicians will increase as we add in more of these variables. We didn't use things like age or the possibility of using advance directives as variables specifically, but in the conversations that we've had with our colleagues, there's a lot of discomfort around that as well.

So our starting point for a lot of the discussions was the Carter decision as we interpreted it, which is not what some people are calling “Carter plus” but more the floor than the ceiling, I think. And the more variables you add in, the more difficult health care providers find those scenarios, and the lower the support, and the lower the percent of providers willing to step forward and provide assisted dying becomes. . .

. . . So it's not something we consulted the membership on.  What I can tell you is that in real life practice, putting advance directives into action is incredibly complex and difficult, because it's very hard to capture all the nuances and the specificities of a very complicated medical condition and intervention.  So even in the best of situations, physicians have a lot of difficulty actualizing an advance directive.  And what our members have told us is that they see a lot of potential difficulties if we were, especially right out of the gate, in this type of a novel intervention, very complex set of circumstances, at the same time layer on the concept of providing advance directives, that would, again, be one further level of complexity, that it would make it more difficult for a lot of physicians to participate and actualize the assisted dying process.   So it's certainly, it's not our official policy, but I would caution that it opens up another whole set of circumstances. . .

Mr. Mark Wawara:  Under your recommendations under 5.2 regarding conscientious objection by a physician, it says:

Physicians are not obligated to fulfill requests for assisted dying. This means that physicians who choose not to provide or participate in assisted dying are not required to provide it or to participate in it or to refer the patient to a physician or a medical administrator who will provide assisted dying to the patient. There should be no discrimination against a physician who chooses not to provide or participate in assisted dying.

Would this apply to physicians and facilities, and organizations?  Or just physicians?

Dr. Jeff Blackmer:  It applies only to physicians.

Mr. Mark Wawara:  So your recommendation is based on consultation with physicians. . . .

Dr. Jeff Blackmer: &n . . . We're very clear on the fact that, if left at the provincial level, we will have a patchwork.  We already do have a patchwork.  As I said, it's no longer a theoretical concern.  It exists in reality now, and our members are telling us about their concerns.  I have phone calls every day, saying, "I live in this province.  I think I'm going to move to this province because I like their rules better and they coincide better with my own moral views. . .

Canadian Medical Protective Association [Full text]

Rights of conscience

Effective and empathetic end of life care requires a strong bond of trust between a patient and his/her physician. In the context of physician-assisted dying and in support of this trust, the CMPA submits that the legislative response to Carter should address a physician's right on moral or religious grounds not to be compelled to assist a patient to die. The Supreme Court of Canada clearly stated in Carter that its ruling was not intended to compel physicians to provide assistance in dying. As such, we urge Parliament to ensure that physicians' freedom of conscience is protected when considering the legislation in response to Carter.

With a view to ensuring patient access to care, an appropriate approach to consider is the one adopted under Quebec's An Act Respecting End of Life Care. In Quebec, a physician who refuses a request for medical aid in dying for reasons of conscience, must notify the designated authority who will then take the necessary steps to find another physician willing to consider the request.

Oral Submission [Edited video]

Dr. Hartley Stern (Executive Director and Chief Executive Officer, The Canadian Medical Protective Association):  . . . I'd like to turn to the rights of conscience. The Supreme Court recognized the patient's right to physician-assisted death, but also clearly stated that in its ruling it was not intended to compel physicians to provide assistance in dying. Legislation is required to address the appropriate balance between these two rights. The committee might consider the model adopted under Quebec's legislation. Under that model, a physician who refuses a request for medical aid in dying for reasons of conscience must notify the designated authority, that in turn will find a physician who is willing to consider the request. . .

Hon. Serge Joyal:  I would like to address my first question to Dr. Stern.

Dr. Stern, in your brief on page 7 in relation to rights of conscience. This issue has been discussed and raised by many witnesses. We had yesterday the representatives of the churches, and they were wrestling with the issue of a doctor or a physician, I should say,  or a care provider who would refuse on moral ground or religious ground to be part of a physician-assisted death.

And you suggest, and I read your recommendation to us, it's the last paragraph on page 7:

With a view to ensuring patient access to care, an appropriate approach to consider is the one adopted under Quebec's An Act Respecting End of Life Care. In Quebec, a physician who refuses a request for medical aid in dying for reasons of conscience, must notify the designated authority

- I underline “the designated authority”—

who will then take the necessary steps to find another physician willing to consider the request.

Could you explain  us who's the designated authority and how it works in practice?  Because, it has been, as you know, the act has been implemented in Quebec, so I understand you might have the information that we are seeking in relation to protecting the rights of conscience.

Dr. Hartley Stern:  So it's been three years since I left Quebec, and there are some specifics of how the implementation of this that I am not current with.

But, when we read Quebec's act, we felt that it offered a very elegant solution to a very complex problem for physicians, and that is, for those that truly have an inability on the basis of conscience to consider referring directly to another physician who would be willing to provide this, that Quebec provides for an opportunity to refer the patient to the authority. Now, I am not certain whether this, under the reforms that have occurred recently in Quebec in terms of the way they have reorganized the system, whether this refers to the hospital in one instance,  whether it's to a regional health authority, which, many of which have been, no longer exist, or which authority they're referring to, but it is something that Quebec has contemplated as an elegant solution to try and assist physicians who have significant, and we  think this a solution that could be adopted in other jurisdictions.

Hon. Serge Joyal:  Because the way I read that section of the Quebec act, section 31, in the case of a doctor practising in a hospital, it is referred to the executive director of the institution, so the institution is not neutral in that case. Because we had a witness last night who pleaded to us that institutions are also, quote, protected by the rights of conscience. In the case of Quebec, it's clearly in the act that the institution is not neutral; the institution has an obligation to provide the service.

In the case that there is a local authority that is not in an institution, they have to refer to the local community service centre, what we call the CLSC in Quebec. In other words, the public institutions have a responsibility to make sure that the request will be acted upon, taken care of, I should say.

So do you consider that this is safe protection in relation to the right of a physician to object to be part of PAD?

Dr. Hartley Stern:  So, we, like everyone else who has appeared before you, has wrestled with this most complex issue of conscience. And you, I know very well that in the Carter decision the Supreme Court specifically said that it is improper or unacceptable to compel a physician to participate in assisted dying.

The issue becomes “What then?” following that inability.  How do we move the patient to ensure that that patient has appropriate access to someone willing to do it? Again, when I left Quebec as the CEO of a hospital, we were preparing. Now, this was before the legislation was enacted. We were preparing for a mechanism, through the DSP [director of public health], to ensure that we would be able to provide a physician in this instance.

Each province has a different governance mechanism. I can't speak to every provincial governance. I can't speak to every provincial management system, but, clearly, I agree with your position that the CEO of the hospital and the board of the hospital is, has got an obligation to participate under the law of the land.

So, again, I go back to the point that we think this is the best solution, a solution similar to what Quebec is providing for their patients in need. . .

Hon. Judith G. Seidman:  I'd like to go back to an issue that we've all been struggling with. Dr. Stern, you really did say that to us. And we have been struggling with rights of conscience.

And we understand that we have the imperative to balance the charter rights of physicians to their conscientious objection with the charter of rights of patients to access.  And in your response to Senator Joyal, you spoke about the patient access to care, the patient rights to access to care, and how Quebec has done this.

But if I look at your submission to us on page 7, the end of the first paragraph. And I'd like to try to understand how this is connected. You say, “we urge Parliament to ensure that physicians' freedom of conscience is protected when considering the legislation in response to Carter.”

So I understand the “ensuring the patient access to care” component as it plays out in Quebec. Is that the answer to ensuring physicians' freedom of conscience is protected,  which you charged Parliament? And I'd like to ask you about that as well, if I may.

Dr. Hartley Stern:  There really are two levels of freedom of conscience here. The first is those physicians that  are uncomfortable for reasons of conscience to participate in responding to the request of the patient but who feel comfortable with referring the patient to a different physician who would be willing to perform that assistance. I believe that would be the majority of the physicians who express difficulties of conscience.

The last part, the Quebec part, that we're referring to, is for a very small number of physicians who may feel uncomfortable referring a patient, for reasons of conscience, to another physician  And this is our attempt to say we believe that Quebec has done an extensive review of the issues of conscience. They have been very thoughtful about this, and the solution they've come up with is, our view, the best way of balancing the two rights, the rights of the patient and the rights of the physician. It will apply to a very small number of physicians, but that's what we think is important. We want to preserve the physician being able to participate in this in that empathetic and thoughtful way, and knowing that some of their colleagues who may have difficulty with this is quite helpful in this process.

Hon. Judith G. Seidman:  Okay, that really helps me understand, you, telling us there are two different aspects you're dealing with here, but I'd also like to go back to say you urge Parliament to ensure this. And so I would like to ask you, if you do think this should be addressed in federal legislation, or is it a provincial jurisdiction, or is it a regulatory body jurisdiction? How do you see this?

Dr. Hartley Stern:  I think this is an absolute necessity to be done. Our concerns are that some provinces may not entertain legislation. In the absence of legislation on this very important social policy,  physicians and patients both will be left in limbo with a significant amount of uncertainty. That will be filled in a way that is insufficient and provide unequal access. It's inappropriate for a patient in one jurisdiction to have different access that is different from the access available to a patient in another part of this country. Therefore, the federal legislation will guarantee that the legislative requirements are fulfilled and that patients will have a consistent approach across the country to access to physician-assisted dying. We hope that the provinces' legislation, where they entertain to do it, will be sufficiently similar,  that the federal legislation will not supplant the provincial legislation in those provinces that actually do do the legislation.

Hon. Judith G. Seidman:  With respect to freedom of conscience of physicians, is that the responsibility of the federal Parliament to legislate, build that into the legislation, or is that something that you see the provinces doing or the regulatory body doing?

Dr. Hartley Stern:  I absolutely believe that this is a legislative requirement.

Hon. Judith G. Seidman:  Federal.

 Dr. Hartley Stern: Yeah. Federal, and for the reasons I entertain, and that is for the issue of consistency, and the issue of consistency of access for those patients.

YoYou, know, if we go back to my original point, the physician who feels insecure because of uncertainty is not going to be able to enter into that relationship with that patient without fear that something bad is going to happen to them. They need to be in that relationship so they can provide the empathy and trust that allows the patient collectively to move forward with that doctor to a successful implementation of the physician-assisted death.

Canadian Nurses' Association [Full text]

A process that enables health-care providers to follow their conscience is essential, should they feel PAD conflicts with their moral/religious beliefs. The CNA code of ethics (2008) emphasizes that "employers and co-workers are responsible for ensuring that nurses and other co-workers who declare a conflict of conscience receive fair treatment and do not experience discrimination" (p. 46). At the same time, health-care providers cannot abandon a patient and must arrange for alternative care, which is also in keeping with the CNA code:

the nurse provides safe, compassionate, competent and ethical care until alter-native care arrangements are in place to meet the person's needs or desires. . . . When a moral objection is made, the nurse provides for the safety of the person receiving care until there is assurance that other sources of nursing care are available. (pp. 44-45) 

Canadian Nurses Protective Society [Full text]

. . . Accordingly, to the extent that protection from prosecution is contemplated for physicians in such circumstances, it should also be contemplated for nurses who currently work alongside them, understanding that such protection would not, in either case, preclude a personal decision to refrain from providing such an assistance on the basis of a conscientious objection . . .

c) Conscientious objections

The right of nurses to refuse to participate in medically assisted death should be expressly recognized in legislation, regulation or professional standards. In the case of nurses, it would be preferable if this right were to be specifically incorporated in legislation or regulation so as to clearly supersede employers' policies and procedure and allow a nurse to express and follow a conscientious objection without fear of reprisal in the workplace. This recommendation should not be perceived as putting into question an employer's compassion in the matter or its ability to address this issue privately. We rather consider this issue of such importance as to warrant a legislative pronouncement.

Canadian Paediatric Society [Full text]

7. Given the rapid societal shift since the Carter v Canada decision, and short time-line to enacting legislation, the CPS strongly enshrines the physician's right to conscientiously object to being involved in Physician Assisted Death generally, but especially in the cases of children and adolescents.

Apart from most citing a strong personal aversion to providing Physician Assisted Death, a frequently cited professional reason is that patients, parents and clinicians already fear the notion of "palliative care", and education is often required to explain palliative care's role in optimizing quality of life for as long as it lasts. If the same physicians were also to participate in Physician Assisted Death, it is anticipated that this fear and apprehension of palliative care might intensify.

While there may be pediatric or family physicians willing to provide Physician Assisted Death, we further believe they will be in the very small minority, so hinging access to Physician Assisted Death on a balance between the rights of patients and the rights of physicians (the apparent result from the Carter v. Canada decision) could be highly problematic, especially within the child's own clinical care team. Pediatric care is very interdisciplinary in nature. Although Physician Assisted Death is the issue, legislation needs to be cognizant of the impact this will have on other health care professionals on the pediatric team (pharmacists, nurses, social workers, and many others).

Further the CPS re-iterates the position that compliance with Carter v Canada does not mandate physician participation in Physician Assisted Death. As per the Supreme Court, "In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid."

Canadian Pharmacists Association [Full text]

CPhA's submission is informed by the Committee's request for input, through the lens of Canadian pharmacy practice. Specifically, this submission highlights the pharmacy community's views on eligibility criteria and definition of key terms, safeguards to address risks, procedures for assessing requests for assistance in dying (for pharmacists) and the protection of physicians' - and pharmacists' - freedom of conscience. While CPhA does not yet have a formal policy position on assisted dying, and therefore does not offer specific recommendations to the Committee, this submission seeks to highlight early considerations in the development of legislation as it pertains to pharmacy practice. . .

1. Protection of Conscience

The Supreme Court of Canada's decision in Carter v Canada noted that a physicians' decision to participate in assisted dying is a matter of conscience, and in some cases, religious belief, and that nothing in its decision would compel physicians to provide assistance in dying.4 Pharmacists agreed overwhelmingly that there must be equal consideration given to the role of pharmacists, who must not be compelled to dispense lethal medication for the purpose of assisted dying. Pharmacists believe strongly that any federal legislation which protects physicians' freedom of conscience should apply equally to pharmacists. Similar to other health care professionals, pharmacists are divided on the obligation to refer to another pharmacist who is willing to fill a prescription for the purpose of assisted dying. . .

• Pharmacists were divided on whether or not a requirement to refer is adequate protection for those who object to participate for reasons of conscience.

Oral Submission [Edited video]

Mr. Carlo Berardi (Chair, Canadian Pharmacists Association):   Beyond these issues that we feel are particularly relevant to pharmacists, we have also heard feedback from the profession that is consistent with that of other health providers. Pharmacists overwhelmingly support the inclusion of a protection-of-conscience provision in legislation. Like other professions, pharmacists feel strongly that they should not be obligated to participate in assisted dying if it is against their moral or religious convictions. In its ruling, the Supreme Court clearly stated that nothing in the declaration would compel physicians to provide or participate in assisted dying, and we believe that such protection must be extended to pharmacists as well.

While we also believe that patients have the right to receive unbiased information about assisted dying and how to access end-of-life care.  Similar to other health care professionals, pharmacists are divided on the obligation to refer to another pharmacist who is willing to fill a prescription for the purpose of assisted dying. Our priority remains ensuring patient access, and so we encourage governments to examine options that could help facilitate referral while also protecting pharmacists' right to conscientious objection. . . .

Mr. Phil Emberley (Director, Professional Affairs, Canadian Pharmacists Association):

Thank you for the question.

We did not specifically ask the question that earlier the CMA had mentioned.  But we did ask the following questions, that I think are relevant to this.

When we asked for agreement with the following statement to what extent did you feel that “Pharmacists should be obligated to participate in assisted dying,”  70% of pharmacists either disagreed or strongly agreed [sic] that pharmacists should be obligated, so fairly strong support there, to that statement to disagree.

And then, I guess secondly, the other pertinent statement was “If a pharmacist does not wish to participate in any aspect of assisted dying, they must refer the patient and/or physician to another pharmacist who will fulfill the request.” We actually had 65% agree with the statement that they must refer. 

Canadian Society of Palliative Care Physicians [Full text]

3.4 Recommendation to reduce harm to health provider conscientious objectors

Create a separate, parallel provincial service to provide information, counselling and referral to willing physicians that can be directly accessed by patient, families, health care providers and institutions.

In consideration of hastened death, physicians' – and all health care providers'- conscience rights must be respected. Although conscience is often simply portrayed as "for" or "against" hastened death, in practice, it is much more nuanced. In considering participation in hastened death, physicians' conscience may fall along the spectrum of opposition to any participation, procedural non-participation, non- participation in act, non-interference all the way to participation in the act. If a physician is deeply opposed to hastening death, a duty to refer may be seen to imply forced participation procedurally in anact he or she finds morally abhorrent. An important distinction for many physicians morally opposed to hastening death is the question of who initiates the act. If a well-informed patient initiates the process, physicians may be more comfortable sharing medical information and transferring care if requested. If physicians perceive that they must initiate the process through a duty to refer, many more physicians will experience moral distress. There are ways to facilitate a patient's access to hastened death without compelling individual physicians to formally participate.

Options include:

a. A separate and parallel system to provide information, counselling and referral that can be directly accessed by patients, families, health care professionals and institutions.

Services provided could include:

Information provision

•  End-of-life care: including definitions, explanations of terms, and distinctions between withholding CPR, withdrawal of life-sustaining interventions, palliative sedation therapy, euthanasia, benefits of a palliative approach, death education, etc.

• Information about facilities and services: palliative care units, home palliative care programs, eligibility criteria, and how to begin the application process to palliative care

• Hastened death: rights, eligibility criteria, alternatives, including palliative care or symptom control

Providing or initiating referral to counselling

• To explore the request to hasten death if the patient does not have access to a skilled professional

• May include referral to a willing palliative care professional, spiritual care professional, mental health expert, addictions counselling etc.

Referral to physicians willing to provide hastened death

• Willing physicians would need to register with this service

• Willing physicians would need to be trained and regulated by their provincial Colleges and/or the CMA

• Willing physicians would need to declare which services they were willing to provide: attending or consulting role

This service could be provincially funded and based, to account for the different healthcare structures in each province. While most palliative care physicians would be willing to inform patients about such a service, a small minority of palliative care physicians would not be willing, for reasons of conscience. A tremendous amount of advertising would be required to ensure that all Canadians know where to find quality information about end of life options. This would require subtlety and finesse, to ensure that Canadians not receive unintended messages that provincial governments are advocating physician- hastened death.

b. Duty to inform rather than duty to refer

Another way to inform, or facilitate access to quality information would be a duty to inform another team member of a patient's request or interest. This could be a robust system to include a way of flagging a patient's request and connecting to another team member willing to provide information or to refer to the separate, parallel system above. The provision of information could also be accomplished with a referral to a patient advocate [9] . The acceptability of this option to palliative care physicians depends on the permissiveness of the criteria for physician-hastened death. Many more palliative care physicians would be willing to refer to a patient advocate, or have a duty to inform, in a more restrictive system.

c. Team duty rather than individual duty

Rather than expecting all physicians to have the same duty -- whether to refer, inform or not impede access -- we could approach the issue as a team. In a 2015 survey of the members of the Canadian Society of Palliative Care Physicians, 26% of respondents felt that, if legalized, physician assisted suicide and euthanasia should be provided by palliative care service physicians or services . . The possibility exists that within a team, or within a region, a specific separate system could be created to include willing physicians. This possibility may not exist in rural or underserviced areas- or in teams where there are not willing physicians. The separate parallel provincial system recommended may need to include a mobile component of service, to respond to areas or teams without registered willing physicians.

In addition to physician responsibilities, healthcare organizations (hospitals and health authorities) should have an obligation to facilitate -- or not impede -- access. If certain healthcare organizations choose not to allow physician-hastened death on their premises for reasons of conscience, they need to establish a transparent mechanism to guide physicians who are asked for such assistance by their patients. This need could be met be a separate service.

Oral Submission [Edited video]

Dr. Monica Branigan (Canadian Society of Palliative Care Physicians):  . . . And finally, we need to, as a priority,  create a sustainable system. So we need to offer protections in the Criminal Code for all of our health care practitioners - everybody, not just physicians. We also need to consider legislating for protection of conscience, because you cannot build a sustainable system on moral distress. I think Dr. Blackmer talked to you about this point. We need to make sure that institutions that opt out do so in a way that doesn't overly burden other institutions. And as Anne was talking about, we realy need to make sure that those providers who actually provide this service need to be supported with psychological support, spiritual support and making sure that they're not overburdened. . .

Canadian Unitarian Council [Edited video]

Mrs. Vyda Ng (Executive Director, Canadian Unitarian Council):  On the matter of equitable access, we believe that publicly funded institutions should be required to provide physician-assisted dying on their premises. Other health care professionals may provide assisted-dying medication, especially in situations where there is no physician available or willing, or in the more remote regions.

In areas which are remote, ways must be found to allow patients equitable access so that there are no delays and that the same level of compassionate care may be provided.

In circumstances where the physician is unwilling to provide assisted dying, mechanisms must be in place for individuals to access this without undue stress.

We also believe that physicians and health care practitioners should be able to make their own decisions based on their conscience. They should be able to refuse the provision of assisted dying if this is their personal belief. They should be able to make these decisions without fear of reprisals or consequences; the institutions for which they work should not be able to levy any kinds of consequences upon them.

When this is the case that a physician decides not to provide assisted dying, the patient must be given full access to other means. There should be no impediments to the individuals requesting assisted dying, and institutions should not prevent patients from accessing this care.

There needs to be a carefully thought-out system for transfer of care so that patients are not denied compassionate treatment and to make sure that this is done without additional stress or trauma to the individual. Patients' needs need to come before doctors' wishes, nor should  provincial, territorial, or municipal governments allow any roadblocks or barriers to exist for patients to access assisted dying.

Why does the Canadian Unitarian Council feel so strongly about this? As a religious institution, we realize that different faiths have different beliefs, but we do not think that the views of any one faith can be used to restrict the freedoms of other individuals. . .

. . . And it's very much in keeping with Canadian values to put the needs and wishes of Canadians ahead of the values of individual doctors and institutions, and to respect each person's dignity at the most traumatic periods of their lives. . .

Hon. Nancy Ruth (Senator, Ontario (Cluny), C):  . . . you have said that access should be evenly available and that doctors must transfer patients if they have a conscientious objection. What is the opinion of the Unitarian Council if the hospital is a faith-based hospital who objects to doing physician-assisted death, not just the doctor? Or does the Unitarian -

Mrs. Vyda Ng:  We understand that there are many faith-based institutions that provide hospice and palliative care. And it's even more important in those situations that a good, effective process of transfer of care does happen, as we've been talking about, especially in the more remote communities. It is the constitutional right of every Canadian to receive this care, and it is a fine balance between protecting the rights of conscience of the physician and making sure that the rights of the individual patient have not been violated. So a good mechanism needs to exist. Whether it's a direct doctor referral care or a third party referral system, it needs to flow smoothly. And I would think that if someone checks into an institution or a hospice facility that is faith-based, they would know ahead of time that there are certain moral values apply.

But to go back to the previous question about institutions if they're publicly funded, we believe that publicly funded institutions should provide this kind of assisted dying.

Catholic Organization for Life and Family [Full text]

If we allow assisted suicide or euthanasia for those terminally ill or not - when requested on the basis of unmanaged suffering, autonomy or individual self-determination over life itself - how can we refuse it to the depressed, the disabled or the frail? How can we defend and uphold the rights of conscience of medical practitioners and health care workers who object in the strongest possible terms to being implicated in any way in killing (even by referring a patient)? Euthanasia and assisted suicide are crimes which no human law can pretend to legitimate. Legislation of this kind far from imposing obligations of conscience creates a serious obligation to resist by conscientious objection.

Centre for Inquiry Canada [Full text]

• CFIC submits that physician's rights to conscientious objection should not extend to the power to refuse to refer patients to physicians who do not object to providing assistance in dying
• all publicly funded primary healthcare institutions must provide physician-assisted death services

. . .  moral propositions based on instinct, intuition and/or religious belief cannot be allowed to give rise to restrictions that would sterilize the right the right of a competent adult individual to seek medically assisted dying if life becomes valueless, because the individual "has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition." Any restrictions to the right enacted to "protect the vulnerable from being induced to commit suicide at a time of weakness must be based on evidence", as the Court stressed. . .

. . . The second specific submission concerns the right of physicians to conscientious objection. CFIC submits that this right should not extend to the power to refuse to refer patients to physicians who do not object to providing assistance in dying. Those admitted to the practice of medicine enjoy a somewhat monopolistic position with respect to a good that, in Canada, is essentially a public good. Individual conscience cannot be allowed to sterilize the rights of patients bearing the yoke of unbearable suffering to exercise their autonomy to end their suffering. Further, to the extent that the right to conscientious objection may render assisted dying services unavailable in certain parts of Canada, it is submitted that the federal and provincial governments owe a moral obligation to devise effective measures to ensure that the rights of patients are respected.

Our third specific submission requires that publicly funded primary healthcare institutions, including hospitals, hospices and long-term care facilities, must be required to provide physician-assisted dying on their premises. . .

Centre for Israel and Jewish Affairs [Full text]

. . .Despite divergent opinions on whether PAD should be permitted in Canada, there is a strong consensus that, following the Supreme Court's determination in this matter,matter, substantial measures are required both to protect those healthcare providers refusing to participate in PAD services for reasons of conscience and to ensure that the implementation of PAD is sufficiently regulated. Clear, enforceable definitions of what is permitted and what constitutes proper conduct are required to ensure that no one is pressured into ending their life and that freedom of conscience is protected for healthcare providers. . .

Healthcare Providers

PAD should not be provided without medical supervision to ensure the lethal medication is administered properly and safely. The patient's physician or other qualified healthcare provider should remain with the patient until death, prepared to reverse the procedure if possible should the patient decide to revoke their consent. Any healthcare provider refusing to administer PAD would have a responsibility to inform the patient, to continue caring for the patient and to provide all other treatment options available.

All healthcare providers, including physicians, nurses, pharmacists and others, should be explicitly guaranteed a right to refuse to provide PAD for reasons of conscience in all circumstances. This is entirely consistent with the Carter v. Canada decision, which explicitly noted: "nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying." Instead, the Court left it to the appropriate legislative and regulatory bodies to determine specifically how the competing charter rights of patients and physicians should be reconciled.

There are deeply held religious, moral and professional convictions among many healthcare providers that consider referring their patients to another, willing provider an unconscionable breach. We are sensitive to this consideration, which must be balanced with the patient's right to access PAD as established by the Court. One possible accommodation could require the refusing healthcare provider to inform a designated administrator of the medical institution of their objection. That administrator would be responsible for transferring care to another medical practitioner who is willing to provide PAD, in a timely manner, without the refusing provider's involvement.

We acknowledge that this formulation may still not be completely satisfactory for patients or healthcare providers. Regardless of the formula, the rights of a medical practitioner to refuse to participate in PAD for reasons of conscience and the rights of the patient to access PAD under certain circumstanc must be respected and balanced to the greatest extent possible.

Accordingly, healthcare providers should be explicitly protected from discriminatory employment practices on the basis of their willingness to provide PAD to patients.

Healthcare Institutions

There is significant debate regarding whether publicly funded healthcare institutions should have the option to decline to provide PAD. This concern has been raised primarily for institutions with a religious affiliation and palliative care or hospice care facilities.

We support the greatest possible protection of freedom of conscience with regard to PAD. However, this must be balanced against the rights of the patient, who may be forced to endure significant hardship to access PAD services elsewhere. Due either to the health condition of the patient or the proximity of an alternate facility, this balance could, in many cases, be very difficult to achieve.

Some have suggested PAD be provided exclusively by physicians specializing in PAD at separate, PAD-specific facilities. This would counteract the possible negative impact on patients of healthcare providers and institutions refusing to provide PAD for reasons of conscience. Others have suggested that publicly funded facilities should have no choice in this matter.

Ultimately, the most important consideration is that the rights of patients to access PAD in certain circumstances and providers to refuse to offer it are balanced to the greatest extent possible. Regardless of the formulation, healthcare institutions that oppose PAD and refuse to provide it should be barred from penalizing or prohibiting medical practitioners from providing these services in other locations.

---

Chipeur, Gerald [Full text]

2. Rights of Conscience

Carter v. Canada specifically and expressly requires Parliament and legislatures to respect the conscience rights of all engaged in this process. The Supreme Court of Canada has determined that individuals have a right to seek medical assistance in suicide, not a right to force doctors to become executioners. There are more than enough physicians in Canada willing to offer assistance. There is no need to force a physician to kill. Physicians are not the state and do not act on behalf of the state. They are not governed by the Charter. Instead, like individual patients, doctors have Charter rights and those rights must be respected and protected by Parliament. In the unlikely event that a patient cannot find a doctor to assist in death, it is the government of a province, not the physician, that the Charter requires to provide accommodation. Provinces can be counted upon to fulfill their Charter obligations. There is no reason to believe that it will be necessary to enslave doctors in order to achieve that goal.

The Parliament of Canada should enact an absolute right of refusal to participate or assist in a suicide without question and without demonstrated reason. To do otherwise would be to replace one human rights infringement with another.

Christian Legal Fellowship [Full text]

. . .the law must only permit the provision of "aid in dying" where:

. . . no physician or health care facility has been required to refer a patient, or otherwise participate in providing assistance, for physician-assisted suicide against the conscience of the physician or of the facility.

Participation in assisted suicide by physicians must be entirely voluntary.

Christian Reformed Churches in Canada [Full text]

. . . Given the profound ethical questions surrounding physician assisted death (PAD), it is our hope that any legislative package will emphasize human dignity and compassion at the end of life; robust protection of vulnerable persons; conscience protection of medical practitioners and institutions who object to providing PAD; and provisions for oversight and legislative review. . .

2. Medical care providers/Institutions conscience protection

Given the diversity of opinion on PAD and end of life ethics, physicians and other medical care providers, including institutions, need meaningful conscience protection in any PAD regime. Canada's public health care system puts medical care providers in clear positions of public service that require respect of, and provision for, the diversity of patients' perspectives on PAD. Care providers with ethical objections to PAD must not be compelled to provide PAD services. However, conscience bound care providers must not exercise their power in the medical system in a way that restricts the moral agency of a patient to seek PAD services from another practitioner.

Physicians' conscience conflicts could be minimized by establishing a specific and opt-in training certification for physicians providing PAD. No other practitioners should be required to provide PAD services. . .

RECOMMENDATIONS

3. Medical care providers' conscience protection:

That conscience bound medical providers and institutions not be required to provide PAD services. In this respect we commend to you the Canadian Medical Association's Principles-based Recommendations for a Canadian Approach to Assisted Dying, and in particular their:

• Foundational Principle 3 - respect for physician values;
• Recommendation 3 - PAD services provided by specifically trained physicians. This is an opt-in provision that allows conscientious objectors to opt-out.
• RRecommendation 5 - protection for physicians and institutions with moral objections to PAD that also respects the moral agency of patients seeking PAD.

Clay, Pat [Full text]

The physician is not me. I demand the doctor refer me to another doctor or third party referral.

Coaltion of Healthcare and Conscience [Full text]

Option #2 – Enact Criminal Code prohibitions on coercion

19.Parliament may amend the Criminal Code to add prohibitions on coercing an individual toend their life through assisted-suicide or to coerce an individual to participate in assisted-suicide.

20. Such prohibitions would be criminal in pith and substance and would fall within Parliament's criminal jurisdiction. Such prohibitions would also serve to protect vulnerable people from being coerced into ending their lives prematurely through assisted-suicide and to protect the Charter right to freedom of conscience and religion of individuals including healthcare practitioners and other service providers.

Option #3 – Self referral and a centralized office

21. Parliament could create a federal third-party agency to provide individuals with information related to assisted-suicide including how and where such services can be obtained.

24. A similar centre could be set-up for assisted suicide. Individuals wanting assistance in ending their lives could call a toll free number which would lead them to this call centre. During the call, the caller could be provided with a variety of information including who the providers of assisted suicide are in the caller's region. With that information, the caller could then call the provider themselves and self refer. A similar service could be established online.

Option #4 – Withholding transfer payments from provinces

26. Should Parliament choose to push the matter of regulating assisted-suicide down to the provinces and territories, it may still ensure that provinces and territories enact legislation and that the legislation they enact meets certain standards.

27. Should Parliament choose not to directly regulate assisted-suicide, it may and ought to make it a requirement for provinces and territories to do so and to enact legislation which protects vulnerable people from the dangers of assisted-suicide, which protects healthcare practitioners' Charter right to freedom of conscience and religion and which protects the freedom of religion and the religious identity of faith-based healthcare institutions.

28.In order to ensure that provinces and territories enact such legislation, Parliament couldwithhold the Canada Health Transfer from provinces who do not comply.

Option #5 – Language affirming conscience rights.

29.Although marriage falls within the provincial jurisdiction in our division of powers, there isfederal legislation governing marriage.

30.In 2005, in response to a series of court decisions regarding same-sex marriage, Parliamentpassed the Civil Marriage Act which legalized and regulated same-sex marriage. . .

33.Such an approach could be adopted with assisted-suicide. Parliament could include languagewhich confirms that individuals or faith-based healthcare institutions who oppose assisted-suicide are not to be compelled to engage in it and are not to be discriminated against as aresult of their opposition. Such language could read as follows:

Healthcare practitioners

1.It is recognized that healthcare practitioners are free to refuse to participate inassisted-suicide either directly or indirectly if doing so is not in accordance with their conscience and/or religious beliefs.

Freedom of conscience and religion

1.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise or refusal to exercise, in respect of assisted-suicide, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.

***

Proposed process -

1. Patient requests information or assistance to end his or her life from his or her physician.

2. Physician discloses her or his conscientious objection to participation in the termination of the life of this patient, including performing assisted death or referring the patient for assisted death.

3. Physician counsels the patient to determine if there is an underlying cause for the request that could be otherwise resolved. This would normally include listening to discern the goals of care of the patient and how these may be met; identifying and offering treatment for any physical, physiological or social issues impacting this request; and providing ongoing treatment, counseling and/or other referral(s) that may be appropriate.

4. If the patient still requests assisted death, the physician provides information to the patient about the medical options available to them. This would include information about all legal medical options.

5. If a patient chooses to be assessed for medical aid in dying, the physician will advise that the patient or their representative can access that assessment directly. . .

10. Physicians should not have to refer a patient for assisted death either directly or to a third party. Note: a proposal similar to this one has been approved by the Canadian Medical Association. . .

Oral Submission [Edited video]

His Eminence Thomas Cardinal Collins (Archbishop, Archdiocese of Toronto, Coalition for HealthCARE and Conscience):  . . . I appear today on behalf of the Coalition for HealthCARE and Conscience. Joining me is Larry Worthen, the executive director of the Christian Medical and Dental Society of Canada.

We are like-minded organizations committed to protecting conscience rights for health practitioners and facilities. In addition to the Catholic Archdiocese of Toronto and the Christian Medical and Dental Society of Canada, our members also include the Catholic Organization for Life and Family, the Canadian Federation of Catholic Physicians' Societies, the Canadian Catholic Bioethics Institute, and Canadian Physicians for Life.

I will address two issues: conscience protection for health care workers, and palliative care and support services for the vulnerable.

For centuries faith-based organizations and communities have cared for the most vulnerable in our country, and they do so to this day. We know what it is to journey with those who are facing great suffering in mind and body, and we are committed to serving them with a compassionate love that is rooted in faith andexpressed through the best medical care available.

We were brought together by a common mission: to respect the sanctity of human life, which is a gift of God; to protect the vulnerable; and to promote the ability of individuals and institutions to provide health care without being forced to compromise their moral convictions. It is because of this mission that we cannot support or condone assisted suicide or euthanasia.

. . . the dust returns to the earth as it once was and the life breath returns to the God who gave it. Death comes to us all.  And so patients are fully justified in refusing burdensome and disproportionate treatment that only prolongs the inevitable process of dying.  But there is an absolute difference between dying and being killed. It is our moral conviction that it is never justified for a physician to help take a patient's life under any circumstances. . .

. . . Those called to the noble vocation of healing will, instead, be engaged in killing, with a grievous effect upon both the integrity of the medical profession committed to do no harm, and upon the trust of patients and those from whom they seek healing. Even those doctors who support this legalization in principle may be uneasy when they experience its far-reaching implications.

The strong message from the Supreme Court is unmistakable: some lives are just not worth living. We passionately disagree.

In light of all this, it is clear that reasonable people, with or without religious faith, can have a well-founded moral conviction in their conscience that prevents them from becoming engaged in any way in the provision of assisted suicide and euthanasia. They deserve to be respected. It is essential that the government ensure that effective conscience protection is given to health care providers, both institutions and individuals. They should not be forced to perform actions that go against their conscience or to refer the action to others, since that is the moral equivalent of participating in the act itself. It's simply not right or just to say, “You do not have to do what is against your conscience, but you have to be sure it happens”. . .

Mr. Laurence Worthen (Executive Director, Christian Medical and Dental Society of Canada, Coalition for HealthCARE and Conscience):

. . . Through increased access to palliative care, disability, chronic disease, and mental health services, Canada can significantly reduce the number of people who see death as the only viable option to end their isolation, their feeling of being a burden, and their sense of worthlessness.

Our concern for our patients extends to our concern for conscience protection. Recently the College of Physicians and Surgeons of Ontario passed a policy requiring referral for assisted death. A referral is the recommendation or a handing over of care to another doctor on the advice of the referring physician. The requirement to refer forces our members to act against their moral conviction that assisted suicide or euthanasia will, in fact, harm their patients. If they refuse to refer, they'll risk disciplinary action by the Ontario college.

When a proposed practice calls into question such a foundational value of the common good of society and the foundational value of the very meaning of a profession, a health care worker has the right to object. A health care worker does not lose their right to moral integrity just because they choose a particular profession.

In the landmark Carter case, the Supreme Court of Canada said that no physician could be forced to participate in assisted death. They also said this was a matter that engaged the charter freedoms of conscience and religion. It is not in the public interest to discriminate against a category of people based upon their moral convictions and religious beliefs. This does not create a more tolerant, inclusive, or pluralistic society, and it is ironic that this is being done all in the name of choice.

Fortunately, six other colleges have not required referral. We have enumerated several possible options for the federal government to ensure that these charter rights are respected all across the country. We have a legal opinion, that  we will make available to the committee, that lists five ways the federal government could protect conscience rights.

If the federal government does not act, then we risk a patchwork quilt of regulatory practices and a serious injustice being done to some very conscientious, committed, and capable doctors.

Despite our concerns, members of our coalition will not obstruct the patient's decision should this legislation be put in place. The federal government could establish a mechanism allowing patients direct access to a third party information and referral service that would provide them with an assessment once they have discussed assisted death with their own doctor and clearly decided they wish to seek it.

Our members do not wish to abandon their patients in their most challenging moments of vulnerability and illness. When we get a request for assisted death, should this legislation go ahead, we'll probe to determine the underlying reason for the request to see if there are alternatives for management. We'll provide complete information about all available medical options, including assisted death. However, our members must step away from the process, allowing the patient to seek the assessment directly once they have a firm commitment to take that path.

Like our coalition, the Canadian Medical Association has stated that doctors should not be required to do referrals for assisted suicide or euthanasia. It's important to remind the committee that no other foreign jurisdiction requires physician compliance in assisted death through a referral. . .

In closing, we highlight four areas of serious concern: the need for improved patient services, including palliative, mental health care, and support for people with disabilities; protection of the vulnerable; provisions that physicians, nurses, and other health care professionals not be required to refer for or perform assisted death or be discriminated against because of their moral convictions; and finally, protection for health care facilities, like hospitals, nursing homes, and hospices, who are unable to provide assisted death on their premises because of their organizational values. . .

Thomas Cardinal Collins:   I would simply say that there are many, many Canadians, especially those most deeply intimately involved in caring for people, who are profoundly troubled by our country moving in this direction, and that whatever procedures you are in the course of setting up that those who have that profound conviction must be,  I think their conscience needs to be protected. I'm glad the Unitarian Church also agrees with that. I think not of only individuals, but also institutions.

There are ways of providing protection for conscience and dealing with this issue. And I think Larry has mentioned that, and might want to give more detail on it.

Mr. Laurence Worthen:  Yes, the proposal which we will leave behind was one that we discussed at length with the Canadian Medical Association, which they have approved. Which basically shows the physicians articulating their conscience issue around assisted suicide and euthanasia with the patient, having the dialogue and discussion with the patient, giving the patient information about all viable options, but then simply stepping back from the process and allowing the patient to have direct access to an assessment for assisted death.

Our hope would be that either the federal government or the provincial governments would create an information referral service so that after patients have had the discussion with their own doctor, that they are able to access that directly. We've checked that out with moral theologians, both on the evangelical and Roman Catholic side, and they find that morally acceptable. This seems to us to be a way for our physicians to continue to care for the patient, not affect the physician-patient relationship, and also allow the patient to make their decisions without there being any obstruction from the physician.

Mrs. Brenda Shanahan:  So you would be open to this duty to inform, then, if not an active referral, but to inform another body that the patient has requested physician-assisted suicide?

Mr. Laurence Worthen:  We differ slightly from the recommendations of the provincial-territorial expert advisory group. They suggested that it would be the physician's responsibility to inform the third party. Our feeling is that it would be unacceptable for us to have to take that responsibility and that the actual patient could be the one to contact. In the situation where the patient is unable to contact, which would normally happen in an institution, then we could look to a patient transfer that would be the opportunity, then, for another physician in the facility to be able to respond to the patient's concerns. . .

Mr. Mark Warawa: Thank you to the witnesses for being here. It's very interesting.

I researched the Unitarian Council and I didn't see any hospitals that had been established by the Unitarian Church, but I did find many, many that are faith-based Catholic hospitals.

There has, and I appreciate the question from MP Shanahan and her sharing that we should not impose our beliefs on other Canadians. But there's this balance of faith and doing what's right in our own hearts too. My question is, and also there's been comment around this table that the doctor's conscience should be protected, and maybe not to do it themselves, but to refer.

 And I'm understanding and you believe and most physicians.... Actually, I think it was 70% of physicians do not want to have to be required to refer,  30%, which is 24,000 physicians, are willing to practise this. So, focusing on the 70%, I think that most Canadians believe they should not be forced to perform assisted suicide or euthanasia; they should not be forced to refer.

But there's been a question, I think from one of our senators, that institutions, bricks, do not have  conscience. If you could comment, do institutions have a value system that would say yes or no? Should they have the right to say no as an institution?

Is there a possibility of having possibly, a harmonizing system, where you have institutions, hospitals, like a Catholic hospital, that is not bound because they're providing health care. But they could be known as a hospital that provides health and natural death, and there could be some hospitals that provide that other choice. Could you comment on that?

Thomas Cardinal Collins: I think it's very true to say that institutions are not bricks and mortar. You don't look around and say this is.... Institutions are made of people. Institutions are like the Sisters of St. Joseph, the Grey Nuns, all of the various groups who brought loving health care to this place. They're not things; they're communities of people. And they have values, and that's why people come to them. That's why they seek them out.

They know when they go, for example, to a hospital - and I can think of St. Michael's Hospital, St. Joseph's Hospital, Providence centre which has a wonderful palliative care place.... They know they can trust when they come to the sisters or they come to the church. It's true, as well, for Jewish and Protestant similar institutions, of which there are many. In my own diocese, there are very many. That they can trust that we have certain values that we hold to. Those values are important for our whole society. Political parties have values; other institutions have values. They're not objective things. They're not material things. And that's a great value for our whole community.

These institutions are funded by the government because they do an immense good work. They provide a variety, diversity, choice, I might say, to people, and that's very, very important.

So, I would say that institutions provide the spirit. I think of the one next to where I live, the Urban Angels, St. Michael's. It's a sign of hope, hope for people. And if you undermine the institution for what it is, our society will be very, very much harmed. Our whole community would be a lot harsher, colder, crueller, without the witness given by communities of faith who are on the ground, on the street, day by day, caring for the most needy. I don't think they should be undermined or attacked. . .

Mr. Mark Warawa: . . . I'm just wondering about the safeguards to ensure the conscience. You said you had some ideas on physicians who do not want to participate within a federal regime. I had heard that one of the suggestions was that it could be a criminal offence to force someone - a physician or an institution - to force someone to be involved with this.

Is this one of the suggestions that you were considering?

Mr. Laurence Worthen:  Yes.

Our legal brief has five different options in all. One of them would be, just as in some of the provincial college documents, doctors who choose to do euthanasia are protected against discrimination on the part of faith-based institutions, so also we would ask that doctors who do not want to do euthanasia are also protected. That could be by way of criminal statute that would make it unlawful for someone to be coerced into participating in this.

Mr. Murray Rankin:  Thank you, Chair.

Thank you to all of our witnesses. I particularly appreciate, Cardinal Collins, your strong assertion of the need for our committee to address palliative care, and I really appreciate you putting that on the table.

I wanted to, I guess,  explore a little bit of what Mr. Warawa was just saying presumably to Mr. Worthen, the question. I'm going to read to you from the College of Physicians and Surgeons of Ontario, their “Interim Guidance."   They talk about physicians must provide an “effective referral...to a non-objecting, available, and accessible physician or agency...in a timely manner”. And in my province of British Columbia, the similar body says that physicians must ensure “effective transfer of care for their patients”. This is in the context of conscience protection for health care providers.

Now, you have stated this obligation to refer patients would violate the conscience rights of certain physicians, and instead there should be a mechanism to provide patients with third party information, assessment, and services. I'm a little concerned, though, because other witnesses have told us that simply providing a person who wishes to exercise their constitutional right can't be limited by a Yellow Pages reference, an 800 number, or a website.

So, I'm trying to get my head around what you're suggesting and, in particular, how that would affect right of access,  effective right of access for Canadians in remote communities if one were to accede to your recommendation.

Mr. Laurence Worthen:  Okay, thank you for the question. It's a very good one.

I think that there needs to be more.... Our proposal is not to simply send someone to the Yellow Pages.  Far from it. Our doctors are committed to the life and well-being of their patients, so they would want to maintain the physician-patient relationship. They would want to discuss this important decision with their patients. They would want to provide the patient, they would want to spend time determining what the reason for the request is. And they would also want to ensure that the patient was able to get the assessment if they so desired it. They would not want to stand in the way of that.

I'm not talking, we should not be talking in this country about having a simple operator at the end of the phone that is going to give someone a number. In my view, we should be responding compassionately to these people, because many of these people will need services, support, and help. And so, this service that is anticipated by the Canadian Medical Association,  I think similar in the provincial-territorial expert advisory group recommendations, would be for support services to be made available and for this person to get an appropriate assessment in a thorough way. We're not talking about sending someone to the Yellow Pages; this is in a thorough way.

Now, I think something like this is really important in a more remote community, because even in a remote community you might have one doctor or two doctors. Both might be people who are not prepared to participate in assisted death. This will mean that it would be important for that individual to be able to get access to this service, and that service, I think the responsibility is on government to ensure that that service is available and provided.

Mr. Murray Rankin: In the time that's available - it's so short - I want to go to the institutional side. We've talked about the conscience of the health care provider. I'd like to turn again to the institutional argument and to quite boldly put forward that if an institution of which the cardinal has spoken receives public funding, shouldn't they be required to provide all Canadians with the constitutional rights that they now have?

I understand about the professional, and you've put some good arguments forward, but I'm still at a loss to understand why a body that receives public funding shouldn't be required to be providing constitutional rights that all Canadians now enjoy.

Mr. Laurence Worthen:   I would say, just to answer that quickly, I would say that it's misreading the Carter decision to say that it requires individual physicians or facilities to provide the service. What it says is that people, Canadians have the right to this, but it doesn't say that they have a right to it from every individual institution or individual doctor.

Mr. Murray Rankin:  But what if there's only one such institution in a remote northern Ontario community, for example?

Mr. Laurence Worthen:  Well, this happens all the time in medical care. There are certain procedures that are only provided in certain places. It would be up, it's up to government. The departments of health cannot shirk their responsibilities here.

If this is something that the Supreme Court has mandated, then the departments of health have to find ways to provide these services. If that means that they have to send a physician out to that individual or bring that physician in.... That commonly happens. . .

College of Family Physicians of Canada [Edited video]

Dr. Francine Lemire:  A physician who refuses to fulfill a patient's request for physician-assisted death for reasons of conscience, they still hold some responsibilities to their patient. As the primary provider of care, family doctors can assist their patients to finding a willing physician. This can be done through direct referral to a willing physician, providing their patient advice on how to access a separate referral service, or notifying a medical administrator at the institution, who would arrange for another referral.

A central information system for patients would support this process and help a great deal to avoid the feelings of abandonment and confusion. It would also improve the standardized nature of information available across Canada on this important issue. The objecting family physicians will provide continuity of care and transfer the patient's medical record promptly and effectively if requested. Above all, the CFPC opposes any action that would abandon a patient without any options or direction. . .

Hon. Serge Joyal:  [Translation] Dr. Lemire, if I may, I will come back to page 4 of your presentation that we received on the 18th of January - the letter, not your presentation.  I believe everyone received the same copy. It was prepared by your group. On page 4 of the brief, there is freedom of conscience, the physician issue is addressed. On the second paragraph of that subject .

Dr. Francine Lemire:  I don't have it with me, but go ahead.

Hon Serge Joyal:  I'll read it in English, if you don't mind,  I received it in English.

[English] 

...physicians must be cognizant of the scope of their responsibility in providing care to a patient. The CFPC opposes in principle any action that would abandon a patient, without any options or directions.

That is under the heading “What is the meaning of a physician’s right to freedom of conscience?”

Could you expand on that sentence, that your association “opposes in principle any action that would abandon a patient without any options or direction”, in view of a physician refusing to assist a person in dying? . . .

Dr. Francine Lemire:   We believe that the medical profession, that physicians have a responsibility not to abandon. So if a physician finds himself or herself in a position of not being able to conclude the process, that physician can still do the exploration that is discussed in this document. If the wish of the patient is still to proceed, then the physician ought to either refer to another physician or to provide sources of referral that the patient can access in such a way that the patient is not left having to fend for themselves at this important time of life.

That there's a responsibility for the physician, even though the physician may not be performing the procedure, to attend to other medical needs, to transfer records, to connect with loved ones in a process that  encompasses not only the end of the life of that patient but also goes beyond, because very often, as family physicians, we have awareness of spouse, children,  family.