Standing Committee on Justice and Human Rights
House of Commons, Parliament of Canada (May, 2016)
Re: Bill C-14
Extracts of Briefs and Oral Submissions
Note:
Links to the full briefs are provided below.
Bold face identifies groups or individuals who
appeared as witnesses.
For statements specific to freedom of conscience and religion for
healthcare providers:
- click on (Brief Extract)
to see statements extracted from a brief,
- click on [Edited Video Transcript] for transcripts of edited videos.
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Links to the full briefs are provided below. Click on
(Brief Extract) to see extracts of briefs relevant to
freedom of conscience. Click on (Edited Video Transcript)
to see what was said relevant to freedom of conscience during oral
submissions.
Bold face identifies groups or individuals who
appeared as witnesses. Note that some witnesses may not have
provided written briefs.
»identifies briefs circulated
to Committee members before the Committee began clause-by-clause review
and amendment of the Bill on 9 May.
»identifies briefs circulated to
Committee members after the Committee began clause-by-clause review and
amendment of the Bill on 9 May.
Other briefs were not circulated
before the Committee concluded its deliberations.
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Dembo, Dr. Justine
- Department of Health
- Department of Justice
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»De Silva, Melanie
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»Desjardins, Susan
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De Veber, Barrie and Zeni, Paul
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De Verber Institute for Bioethics and Social Research
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DisAbled Women's Network of Canada
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»Donauer, Andrew
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»Downar, James
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»Downie, Jocelyn
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»Dubland, Ed
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Dumont, Onil and Gagnon, Jocelyne
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Dying With Dignity Canada
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Dying with Dignity Canada's Disability Advisory Council
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»Dying With Dignity Canada, Nova Scotia Chapter
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Echlin, Jean and Pritchard, Dr. Jane
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»End of Life Planning Canada
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»Euthanasia Prevention Coalition
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Evangelical Fellowship of Canada
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Federation of Medical Regulatory Authorities of Canada
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Fenton, Dr. W. James
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»Ferrier, Catherine
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»Fetherston, Ann
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Field, Jane
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Findlay, John and Margaret McCarthy
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»Fine, Adrian
- Fletcher, Steven
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Ford, Jill
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»Forsey, Helen
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Frazee, Catherine
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»Friesen, Gordon
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»Gagnon, Glen
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Gauthier, Stephanie
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»Gibson, Jennifer
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Goldfinger, Eva
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»Goligher, Dr. Ewan C.
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»Gugliotta, Donato
- Guichon, Juliet
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Guzik, Pauline
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»Hammond, Katherine
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Hansen, Nancy
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»Harding, Dr. Sheila
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»HealthCareCAN
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Hein, Rebecca
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Hein, Sarah
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Hein, Stephanie
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Heineman, Rachel
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»Hilts, Cecile
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»Hogan, Marcia
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Hudson, Felicity and Keith
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»Hughson, Sue
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Jarrett, Linda
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»Johnston, Dr. Will
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»Justice Centre for Constitutional Freedoms
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Justice for Children and Youth
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Keyes, Chris
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»Knight, Gary D.
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Koch, Tom
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Krawczynski, Joanna
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»Laferrier, Audrey Jane
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»Lagman, Minette
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»Lansing, Dr. Davina
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Lee, Peter
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Legree, Janice
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»Leiva, Dr. Rene
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»Lemmens,Trudo
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Lepp, Joanne and Richard
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Levy, Karen
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»Leworthy, James G.
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»LifeCanada
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Living With Dignity
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»Longworth, Isaac
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MacDonald, Deanna
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Mahoney, James
Department of Health and Department of Justice
Mr. Ted Falk: . . . Mr. Pentney, I'm going to start with
you, because you were here for the presentations, and I think I want to follow up a
little bit more on the whole issue of conscience rights protection.
And if you could, I think it's an issue that's important to a lot of folks right across
Canada, it's an important issue to this committee, and we want to see if we somehow
we can address that. And I'd like your comments and feedback a little bit on what is
possible, from a legal perspective to draft something like that
into the bill, what would it look like? Where would it belong? How can we do
it?
William F. Pentney, Deputy Minister of Justice and Deputy Attorney
General of Canada: . . . First, I would say, as the two
ministers indicated, the government very much acknowledged, has acknowledged that
protection of conscience rights is an important consideration in moving
forward with this. And also the Supreme Court of Canada obviously acknowledged
that there are among the various rights and interests to be balanced, the conscience
rights of physicians and medical practitioners is an important
consideration. As the two ministers indicated previously, nothing in the
bill compels or in that sense coerces a medical practitioner to be involved
in this. The government has announced, and Minister Philpott confirmed
today, the intention to continue discussions with provinces and territories
about a continuing ca- and Mr. Kennedy and others can speak to this if you
wish - a discussion about ways in which access to care can be facilitated
and information can be provided, and that will be one element of a
discussion around the ways in which conscience rights can be protected.
But although the Supreme Court has acknowledged that health care is a
concurrent jurisdiction, this is an exercise of the
criminal law power by the federal Parliament that's under discussion. This is not
a medical regulatory or regulatory of health professionals or health institutions
bill. This is an
exemption which is being created in the criminal law, and that's been the focus
of the attention in response to the way the case was framed in Carter and the way
that the case has been brought before Canadians, going back
to the Rodriguez case. So in all of that, the consideration was
what the focus of
the bill about. The way in which the bill is constructed, is designed not to
require or compel any medical practitioner, doctor, or nurse practitioner to
be involved in this, and as Minister Philpott indicated previously, the
government's commitment is to continue those discussions with provinces and
territories to try to - I think the expression is, to "find pathways to
care."
So I hope that that responds to the question.
Mr. Ted Falk: Well, it responds but it wasn't
really the answer I was looking for. I was hoping to hear you say that,
well, we
should draft something into the legislation that would provide protection
for health care individuals, that they're not coerced into doing it, and
that
there's a protection for them as well, because there's a fear among health
care professionals that they're not going to have a choice. Not just at the
physician level, but downwards from there as well, that
individuals that are currently tremendous and wonderful individuals who are
providing excellent health and palliative care are going to be forced to
participate in a physician-assisted suicide procedure.
Mr. William F. Pentney: Thank you for the question. I fully understand, and we have observed the
debate as it has unfolded and continues to unfold in provinces and
territories with medical regulators, with physicians, and others across
the country.
The bill does not compel or require anyone to provide the assistance. It
opens an exemption in the criminal law to protect those who fit within the,
who are providing medical assistance to individuals who fit within the
criteria as established in the bill from what would otherwise be criminal
liability. That's the nature and scope of the bill and the intention of the
government.
There are a variety of other regulatory, medical professionalism and
other issues, associated with this. We know from discussions on our side and
certainly from the Health Canada discussions with provinces and territories,
we know that medical regulators, provinces, and territories are actively
engaged in looking at their dimensions of this issue, and we've no doubt
that examination will continue.
Mr. Ted Falk: Okay, I'm going to keep on that. I
don't want to let it go just yet, because I think we could be preemptive.
While we've got the debate going, and while the discussion is open, I think
we could be preemptive. Rather than leaving it to the territories and the
provinces to come up with their own regulations and maybe create a problem
for health care officials, why don't we address that issue right now, up
front, with the legislation that we're looking at?
Mr. William F. Pentney: I think in respect of the
exercise of the criminal law power in defining the nature and scope of
eligibility and safeguards, the law is clear. I think the government's
commitment to complementary and additional measures and discussions is also
clear. And I think from the perspective of the way in which the law is
constructed, it is not, it is constructed explicitly not to compel or
require anyone to provide assistance in dying. . .
Mr. Mark Warawa: Thank you, Chair.
On conscience protection, you've said that the bill does not compel or
require. You've said that the Supreme Court said that we're to create a
complex regulatory system. There has been a major focus, rightly so, on
vulnerable Canadians, but on conscience protection is probably the number
one issue that we hear from as parliamentarians, make sure that the
conscience protect, are being protected. So it's silent. The
legislation is silent on it. It does not compel or require, but it also does
not protect.
It is possible, then, as we amend the Criminal Code of Canada to
permit this, that we could also make it a criminal offence to coerce,
intimidate, or force a physician against their will to participate. Is that
not correct?
Mr. William F. Pentney: I, I guess we would have to look
at it. I'm not aware of the circumstances in which that is a concern. I
guess we'd have to look at it. And I would say that in respect of the scope
of federal jurisdiction under the criminal law, we would also be focusing on
the extent to which provisions that are inserted would have practical legal
effect, given the division of powers.
Mr. Mark Warawa: But the provincial regulators, you
said, their examination will continue, but we're talking about exemptions to
the Criminal Code of Canada . . .
Mr. William F. Pentney: Yeah.
Mr. Mark Warawa: . . . that permit this, under certain
strict criteria. You cannot, before, you and not even presently, it's
legal to take your own life, but you cannot, a person walking down the
street cannot assist somebody to kill themselves. That's illegal. We're
creating this strict regime, but you should also, then, not force somebody
by intimidation, coercion, or any way to participate into the death of that
individual against that person's will. And so that could be
included in the Criminal Code, is my understanding, and still be,
otherwise we would hand it over to the provincial colleges of
physicians, and it could be , it would not be pan-Canadian. It could be a
total different approach if we allow it to each province to protect the
conscience rights.
But we do, I believe, that power, that authority to put that within
the Criminal Code that you cannot coerce, force anybody to
participate in the death of another person, to assisted suicide, against
their will.
Mr. William F. Pentney: We, if it's the committee's
wish, in terms of the completion of the study, we can certainly look at
that.
The Chair: Thank you very much. We
appreciate that.
I think that conscience rights have been raised by a number of people.
And I think that Mr. Falk's original question, was trying to ask you, if
protection of conscience rights are important to the committee, what
solution you propose to make it fall within the law in the best possible
way. One way that was suggested by Ms. Khalid is making a criminal
prohibition, and if there are others, we'd be delighted to hear before we
move to our clause-by-clause deliberation. . .
I am writing you to express my concerns about the protection of the
vulnerable as well as conscience rights for Canadian physicians who refuse
to participate in controversial procedures like assisted suicide/euthanasia.
. .
I am deeply concerned that the recommendations of the Commons-Senate
Committee on Physician Assisted Death do not include adequate protection for
physicians' conscience rights. I consider referral, even to a third party to
be a type of participation. I am also troubled by the committee's
recommendation that facilities should not be allowed to opt-out of providing
physician assisted death in their facilities. . .
I believe that the Canadian Charter of Rights and Freedoms
protects Canadian citizens against being forced by the state to act against
their moral or religious convictions. There are undoubtedly other ways to
ensure that the request of the patients who choose these procedures is
respected. It is not necessary to make dedicated physicians put their
careers on the line and open themselves to professional disciplinary action
simply because they wish to follow their conscience or to force the closure
of facilities that cannot provide physician assisted death. If these
physicians are forced to leave the practice of medicine because of
short-sighted policies, then patients like me will be unable to find the
kind of doctor that I would like to have. I am also concerned that
facilities which cannot morally provide physician assisted death will be
forced to close should these recommendations be included in future
legislation.
. . . I request that whatever legislation is developed respects and
protects the vulnerable as well as the conscience rights of Canadian
physicians, other health care providers and objecting facilities.
. . . The act of assisting a suicide or euthanizing a person conflicts
with the conscience and convictions of many healthcare workers including
physicians, nurse practitioners, nurses and pharmacists. Bill C-144 focuses
on the right of the person with intolerable suffering to have medically
assisted death. The bill also needs to offer the health professionals and
institutions the right to follow their conscience about ending the life of a
person or being complicit in the act by referring for assisted dying or
euthanasia. Canadians should have the option to choose health professionals
or hospitals where they feel safe.
We suggest that the Bill C‑14 be amended as follows:. . .
241.31 (1) allow the physician or nurse practitioner
to inform the patient that due to reasons of
conscience that they will not participate in the act
of medical aid in dying nor refer for it.
Freedom of Conscience
There are still major concerns with Bill C 14: it fails to guarantee
freedom of conscience to medical professionals and hospitals; it fails to
give adequate protection to the large number of people who fear assisted
dying and want to be protected from it. Last, it does nothing to remedy the
desperate shortage of high-quality palliative care in this country, or to
ensure the right of Canadians to palliative care.
Freedom of conscience has to include not just the right not to prescribe
the lethal pill or give the lethal injection, but also the right not to
refer a patient to a doctor who will do those things. The right to
"medical-aid-in-dying" will be accessible to those who choose this method.
Thus doctors and nurses should have their right to say: "Morally and
ethically I cannot give you a lethal injection nor can I give you a lethal
prescription to cause your death; nor be complicit by enacting a referral
for the same." We must all be equally protected under the Canadian Charter
of Rights and Freedoms.
To remedy this we propose the following changes:
Filing information - medical practitioner or
nurse practitioner
Suggested change:
241.31 (1) Unless they are exempted under regulations made under
subsection (3), a medical practitioner or nurse practitioner who receives
a written request for medical assistance in dying must, in accordance
with those regulations, provide the information required by those
regulations to the recipient or inform the individual that so requests
that they are for reasons of conscience unable to comply with the
request. Institutions will not be required to participate in MAID. The
person requesting medical assistance in dying or their representative
shall have the opportunity to be referred to the Ministry of Health of
the Province or Territory.
Filing information -
pharmacist
Suggested change:
(2) Unless they are exempted under
regulations made under subsection (3), a pharmacist who dispenses a
sub-stance in connection with the provision of medical assistance in
dying must, in accordance with those regulations, provide the information
required by those regulations to the recipient or inform the individual
that so requests that they are for reasons of conscience unable to comply
with the request. Institutions will not be required to participate in
MAID. The person requesting medical assistance in dying or their
representative shall have the opportunity to be referred to the Ministry
of Health of the Province or Territory.
. . . I am very concerned about the protection of conscience rights for health
care workers and healthcare facilities who cannot participate because of
their moral or ethical convictions. Provincial legislation must have
conscience protections for health care workers and facilities like
hospitals, nursing homes, or hospices. This legislation must protect health
care workers from being forced to perform or refer for these procedures or
being discriminated against because of their conscientious objection. In the
same way, facilities must not be required to provide euthanasia on their
premises.
No foreign jurisdiction that allows euthanasia requires physicians to
refer or facilities to provide it. For example, California's law says that
participation in any activities related to assisted suicide is voluntary.
Objecting health care workers and facilities are not able to participate
in euthanasia for reasons of conscience, ethics, organizational values,
religious convictions or the Hippocratic Oath. Many are members of religious
traditions that consider referral of any kind, or allowing assisted death on
facility premises, as forms of participation in euthanasia.
The Canadian Charter of Rights and Freedoms protects Canadian citizens
against being forced by the state to do things against their conscience or
religious convictions. There are ways to respect patient decision making
while also respecting the rights of caregivers and facilities not to be
involved.
Objecting caregivers and facilities are motivated by their concern for
the well being of the patient. I would like to go to one of these doctors or
be cared for in one of these facilities. If they are forced out of Canadian
healthcare, I will not have this option. This restricts my freedom of
choice. . .
Ms. Iqra Khalid: We understand that at the federal
level, and specifically Bill C-14, that it is an amendment to the
Criminal Code, which is what we have jurisdiction over. Now the actual
administration of MAID would be something that would be implemented by the
provinces.
Now, do you see - this is open to all three witnesses to
comment on. Do you see that the provinces would be able to come
up with a consistent approach, specifically, self-regulation of doctors,
would they be able to ensure that those physicians or medical practitioners
that do not want to partake in
the administration of death, would the self-regulated bodies be able to take
ownership of that piece and make sure that everybody's conscience rights are
protected?
Prof. Jocelyn Downie: I think this is one of the
spots where the federal government actually deserves a lot of credit, because they
recognize that this is one of those issues that is absolutely federal and
provincial. How do we do this? And they've taken it as an opportunity to
exercise co-operative federalism. It's a muscle we haven't been exercising a
lot recently, but this is one of those moments, and they've taken it.
Which is to say, they've said, "We're going to facilitate the development together
with the provinces and territories". So they're putting their money,
literally their money where their
mouth is on the facilitation of development with the provinces and
territories. A pan-Canadian care pathway.
And what that is about is protecting conscience of providers, ensuring
access for patients, and protecting the privacy of willing providers.
So they've recognized the need for conscience protection, but they're dealing with
it in the way that makes a lot of sense in terms of our division of powers,
in terms of our history with respect to where conscience is actually regulated, and
with respect to this sense of co-operative federalism. Where we have shared
jurisdiction, let's talk, let's do it together, let's figure it out,
not let's torture something into a federal act. That isn't the way to do it.
So I think that that is very promising for having some harmonization. I
think that that group, I would hope, would
bring the federation of colleges of physicians and surgeons, and the
nurses to the table and say, "We're all sitting down here, and we're not leaving
until we figure this out together", because the colleges of physicians, they
splintered within, you know, a week of getting together on this, and that's
really problematic.
The nurses, not so. Fascinating.
So I think that it gets, let's say that this is the kind of thing that we solve together, and bring those
different levels of regulation together to solve it, because everybody shares
the same goals. I want to protect conscience, you want to protect patient access
as well, I'm sure, and so, and we all want to protect privacy. So that's how, I think that's how we have to do
it.
Dying with Dignity Canada's Disability Advisory Council
[Full
Text ]
. . . Include a statutory mandate requiring the government to work with
the provinces and territories and their medical regulatory bodies to ensure
that medical practitioners who oppose assisted dying are required to provide
an effective referral for patients who request it.
- Patients who are suffering intolerably are weak and vulnerable. The
responsibility for finding a willing provider should not be left to
them. Such a situation is tantamount to patient abandonment. No
physician or nurse practitioner will be required to provide assistance
in dying, but any person choosing to practice medicine has obligations
to their patients. A medical practitioner's right to conscience must be
balanced with the patient's right to access assistance in dying.
Our concerns include the following:
- Lack of accessibility and availability of hospice palliative care
that would ensure excellence in quality end-of-life-care for all
Canadians.
- Lack of conscience rights for health care professionals fails to
support our rights under the Canadian Charter of Rights and Freedoms.
- The obligation for all health care institutions to provide
medical-aid-in-dying, again ignores Charter Rights.
Input/Suggestions
2. Ensure that conscience rights for health care professionals are
guarded and protected.
4. The conscience issue could be resolved by removing MAID from our
health care system and establishing a separate funded system implemented by
an interprofessional team of doctors and nurse practitioners with special
training, licensure and regulations who actually choose to provide MAID.
Preamble
Freedom of Conscience and Religion
4. Insert the following clauses:
"Whereas everyone has the freedom of
conscience and religion under section 2 of the Canadian Charter of
Rights and Freedoms; Whereas freedom of religion under the Charter
accounts for the socially embedded nature of religious belief, and the deep
linkages between this belief and its manifestation through communal
institutions and traditions;[Loyola decision, para 60.]
Whereas nothing in this Act affects the
guarantee of freedom of conscience and religion and, in particular, the
freedom of all persons and health care institutions to decline to
participate directly or indirectly in the provision of medical assistance in
dying if doing so is against such person's religious beliefs or conscience,
or contrary to an institution's purposes. Whereas it is not against the
public interest to hold and publicly express diverse views on medical
assistance in dying;"
Freedom of Conscience and Religion
7. We support the creation of a self-referring central agency to
facilitate conscience protection for health care providers; however,
conscience protection for individuals and institutions in the legislation is
crucial. We recommend the following be inserted as a standalone provision of
C-14, in a new section before Related Amendments, or as an amendment to
the Canada Health Act:
Freedom of Conscience
For greater certainty, no
person or organization is required to participate directly or indirectly in
the provision of medical assistance in dying, and 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, in respect of medical assistance in dying, of the freedom
of conscience and religion guaranteed under the Charter of Rights and
Freedoms. 8. Create a Criminal Code offence that prohibits the coercion
of any person to apply for, seek or receive MAID, and prohibits coercion
of health care providers and institutions to counsel in relation to, or to
participate directly or indirectly in MAID.
Oral Submission [Edited Video]
Mr. Bruce Clemenger: . . . as the government is
proceeding with legislation, we are calling for protection of conscience and
religious freedom, for the strictest possible safeguards in order to
minimize harm and risk to vulnerable persons, to ensure that occurrences are
rare, and to protect our society's commitment to the respect for life.
On
the matter of freedom of conscience and religion, the minister, when she
appeared on Monday, said that this legislation does not compel medical
professionals to participate in MAID. While that is technically correct, the
minister also said that MAID is now considered "medically necessary"
treatment. This places conscientious-objecting persons and institutions at
risk of coercion.
Actually, in looking at it today, someone pointed out to me that
proposed subsection 227(4) creates an exemption to section 14, which appears
to, at least, delete the caveat of "no person is entitled to". That seems to
create an entitlement "for".
Our concern is that creating a right establishes a corresponding
obligation. If you accept the premise that medical aid in dying is a right,
you have an obligation to protect, we submit, the freedoms and rights of
doctors and other medical professionals.
The College of Physicians and
Surgeons of Ontario, as you've heard, has already decided that all doctors
must make effective referrals regardless of conscientious objection. What
will this government do to protect medical professionals from being coerced
to participate in the killing of another? Even in times of war,
conscientious objectors were exempted. Medical practitioners must have the
right to refuse to participate in physician-hastened death, either directly
or indirectly, for reasons of conscience or deeply held beliefs, including
the right not to make a referral.
Also, there has been no commitment made to exempt objecting institutions, protecting their staff and the communities that provide care, which we
feel is equally important. We recommend that protections be included by
express statements in the preamble of the bill. We also strongly recommend
that conscience protection be included in the legislation as a stand-alone
provision in Bill C-14, or as an amendment to the Canada Health Act, or by
creating a Criminal Code offence that prohibits coercion of patients,
medical care providers, and institutions in relation to medically assisted
dying.
Did you know that the Banking Act forbids a bank from coercing someone to
obtain a product or service as a condition of receiving another service, or
that it is an offence to coerce someone either to belong or to refuse to
belong to an artistic group? We are talking about hastening the death of
another in this context. How much more important is it to protect the
conscience of medical professionals and institutions?
Mr. Mark Warawa: . . . There was a comment, I believe it was Mr.
Clemenger that made a comment of the importance of conscience protection.
C-14, as we've heard from the minister, does not compel or require a
physician, a medical practitioner, a nurse practitioner, pharmacist, to
be participating in assisted suicide against their will. So they're not compelled. Yet there
is hints that it would be the college of physicians and
surgeons within each province that would determine whether a person is
required to have an effective referral or not, which some physicians would
find objectionable. . .
So there is problems in the regime being proposed, but I want to focus on
conscience protection. The Canadian Medical Association said that 70% of
physicians in Canada do not want to participate or refer.
The other 30%, or 23,000 physicians represented by 30%, would be adequate to provide access.
So why do you believe there's a push that the 70% are not
protected - not compelled or required, but they're not protected? Why is it so
important to have conscience protection included in C-14, or should
C-14 be amended at a future date? . . .
Mr. Bruce Clemenger: We believe it needs to be amended now, before it is passed, to make clear
protection of conscience of both doctors and medical personnel, and also
institutions that provide extended care on which premises someone may
request assisted death, should a law pass.
Again, as I said in my comments, the minister did clarify that nothing in
the bill says the doctor will be obliged to. However, you look at the
"whereas" statements, and it's clear that they're creating a regime around Bill
C-14 that will deem medically assisted death as medically necessary. And once
you create that paradigm, then, you're in a sense, what I don't think
Carter established a right to - access. It was an exemption from the
application of the Criminal Code. But if you begin interpreting and framing it
as a right to access, then there's an obligation to provide.
And I guess the clear example would be the College of Physicians and Surgeons of
Ontario, which already require an effective referral under the current
regime while the bill is being suspended for the next four months.
So we
think it needs to be in place. We think there needs to be a statement in the
"whereas" section, clarifying that no one will be compelled
contrary to their conscience or beliefs to participate. We think there could be
a parallel - you've
heard this before - a parallel paragraph inserted in Bill 14 along the lines
of the 3.1 in the Marriage Act to protect it. But also, there have
been some proposals - and I know they've been submitted to this committee - that
actually
clarify and define Criminal Code provisions against coercion.
Mr. Murray Rankin: Mr. Clemenger, I'm not
sure if I understood this, but when you talked about the conscience
protection, have you looked at the legality, the constitutionality, of our
putting that in federal laws? We've been struggling to address your concern.
Many, including the leading practitioner in the province of Quebec, says it's
clearly and utterly provincial jurisdiction, and even if we wanted to, we
couldn't do it in federal law. Have you got an opinion on that point?
Mr. Bruce Clemenger:
We've talked to a number of constitutional lawyers ourselves, and they believe it is
possible.
Again, it would be coercion. As I gave a couple of simple examples, but
again the idea would be that we'd make it a criminal offence to coerce someone to
undertake a certain action that is deeply contrary to their moral or
religious beliefs.
So it's a reaffirmation of the freedom of Secion 2(a).
Mr. Murray Rankin: Is there anything in the bill
requiring a doctor to provide this service?
Mr. Bruce Clemenger: As I said, it's the
context of the bill, it's what the justice minister and the health minister have
said in terms of making it a medically essential service. We already have the
example of the Ontario College of Physicians and Surgeons, which is
requiring -
Mr. Murray Rankin:
Essential service in the bill, I don't
see where that is.
Mr. Bruce Clemenger: She said it in-
Mr. Murray Rankin: We're talking about the law. Is there
anything in the bill you can point to?
Mr. Bruce Clemenger: Well, I guess, the only, I was referring to the
"whereas" and then the broader context of what the regime the government is
planning to set up in the context of C-14. And that's what gives us a
concern.
But also, we have a live example of the College of Physicians and Surgeons of
Ontario, which is right now requiring effective referral, which is deeply
contrary to the religious conscience and beliefs of many doctors. So they need
protection.
Federation of Medical Regulatory Authorities of Canada
[Full
Text]
FMRAC's members regulate medical acts on behalf of patients. Importantly,
we believe we can speak on behalf of the medical and professional
interest.
Bill C-14 outlines an approach to medical assistance in dying that our
members will regulate. They already regulate professional duties touched
on in Bill C-14, specifically duty of care, duty not to abandon, informed
consent and others.
FMRAC particularly feels positioned to speak on behalf of patients to the
question of access. It will be our members who will regulate the balance
sought by Bill C-14 between a patient's right of access and a
physician's freedom of conscience.
I write to request that freedom of conscience for individuals and
institutions be included in the legislation concerning assisted death.
This is consistent with the direction given by the Supreme Court. It is
also consistent with our Canadian value of freedom of religion.
No one should be required to do something that violates their honestly
and deeply held moral values. To insist that they do so would be very
destructive to the individual and ultimately to our Canadian culture.
6. Bill C-14 has NO conscience clause for freedom of thought and action:
Our Prime Minister Justin Trudeau often says that "PEOPLE MUST HAVE A
CHOICE" yet he promotes a Bill which dictates that there be NO CHOICE for
doctors / nurses who do not want to kill patients - a perfectly reasonable
position for health professionals historically involved in health "care" not
killing. JUSTIN TRUDEAU often talks of "STRENGTH THROUGH DIVERSITY". If
true, then WHY NOT "diversity of belief" for those who do not want to
euthanize people. Angus Ried says 68% of Canadians are OPPOSED to forcing
religious health facilities to participate in suicide. A conscience clause
would foster safe 'kill-free zones' for patients wanting health "care" not
killing, in their vulnerable years.
The total absence of a conscience clause is a serious infringement on the Charter rights of doctors, nurses and pharmacists who should in no
way be coerced, pressured or discriminated against for taking a
conscientious stand against any involvement in assisted suicide. There is no
jurisdiction in the world that forces physicians and other medical
practitioners to act against their conscience. We strongly urge the Federal
Government to implement rigorous conscience protection for objecting
physicians and health care workers.
Ms. Iqra Khalid: This has come up in the
committee a lot from different organizations as well as colleagues around this
table: with respect to protecting the conscience rights of medical personnel,
physicians and nurses, etc. Now, what is your opinion - I would ask this for all three of you
to commet - what is your opinion on having a criminal prohibition creating an offence in the Criminal Code to,
to make it an offence to coerce a physician
into administering death under this bill?
Honourable Steven Fletcher: Yes. In Canada you cannot
force a physician to do anything. I am aware of a physician who refused to
see people who smoke. There was nothing the college could do. It was his
choice. What we have to make sure is that people are not denied their
Charter rights, and that is the concern I raised earlier about section
141(1)(b). It's not clear that people are made aware of all the options
available to them. In fact, it seems that it would be against the law if
they were to raise the prospect of death. And that is, essentially, a denial of
Charter rights. But nobody will force anybody in the medical
profession to do anything they don't want to do. They don't have to do it
now and they will never be able to force someone to do it. The Supreme Court
was very clear.
3. Add explicit wording for conscience protection of medical
practitioners and institutions (doctors, nurse practitioners, nurses,
pharmacists, and anyone else who might be asked to participate in this act.)
E.g. "Nothing in this bill shall compel or require any medical practitioner
(doctor, nurse practitioner, nurse, pharmacist, care aide etc.) to counsel a
patient to participate in MAID. Medical practitioners shall not be required
to administer MAID nor shall they be required to refer patients for MAID."
Doctors, other healthcare professionals and institutions should NOT be
required to perform this procedure OR to refer patients for euthanasia,
which ethically is THE SAME THING. Most doctors and healthcare professionals
go to school to be healers, not killers, and part of the Hippocratic Oath
that they take is to do no harm. The Supreme Court’s decision clearly stated
in Carter, "[i]n our view, nothing in the declaration of invalidity which we
propose to issue would compel physicians to provide assistance in dying."
Freedom of conscience is enshrined in our Charter of Rights and
Freedoms and needs to be respected and explicitly protected.
. . . In this case, I believe that we have not sufficiently weighed the
seriousness of authorizing individuals to pass beyond the universal
prohibition against homicide. The simple interdiction, "Thou shalt not
kill", is not an arbitrary religious artifact. It is, rather, a deep social
and evolutionary response to our collective human experience. Accordingly, I
believe it is obvious that --should we wish to tinker with this fundamental
social rule--, we must expect serious and perfectly foreseeable consequences
which we have an equally serious duty to minimize through a lucid structural
plan of implementation. . .
. . . First, at the personal level, we must consider the negative effects
which will, or may, be inflicted upon the psychological well-being of those
individuals chosen to pass beyond the interdiction to kill; we must honestly
evaluate the psychological consequences for those doctors and nurses who
will be required to participate in making the fatal decisions that will lead
to the planned decease of qualified patients, and particularly, the
psychological effects upon those doctors, nurses, and auxiliaries, which
must result from performing the homicidal acts contemplated. In other words:
we do not have the right, I believe, from the comfort of our theoretical
perspective –and regardless of what benefits we hope to achieve--, to
pretend that these doctors, these nurses, these auxiliaries, can simply pass
over thousands of years of ancestrally ingrained taboos, without being
subjected to extreme psychological stress. . .
In the principal exceptions for "assistance in dying" (227.1) and "aiding
practitioner" (227.2), as well as in all similar formulations throughout the
Bill, let the words "No medical practitioner or nurse practitioner (commits
culpable homicide)" (227.1) and "No person (is a party to culpable
homicide)" (227.2) be replaced with the following:
"No specially licenced medical practitioner or nurse practitioner"
And
"No specially licenced person"
The intent, of course, is to recognize that the authorization to pass
beyond the legal prohibition against homicide, is a serious and
extraordinary exception which should be accorded only to specific
individuals who have:
1. Expressed an informed and fully voluntary desire to act in this
capacity, and
2. Passed whatever training and psychological screening shall be
developed to ensure fully informed participation and, hopefully, to protect
through elimination, the more vulnerable.
It is the current view that allowing entire professional bodies, all
nurses, and all doctors ----that is approximately half a million persons--,
to participate legally in homicidal actions, is to invite personal and
social disaster, be it only as regards the resultant increase of Post
Traumatic Stress Disorder. Moreover, to expect that future generations of
doctors and nurses will be recruited only among those psychologically
adapted to kill would probably involve the loss of most of those people
traditionally inclined towards such service. As a practical matter, no
doctor should ever be required to justify a desire not to kill. Not to kill
is our normal social default. And even more emphatically: no nurse or
auxiliary should ever be accidentally exposed to a request for assistance in
terminating a life.
Again, this is not a question of "conscientious objection" based in some
religious dogma, this is simply a reflection of normal behavior. To pass
beyond normality should require a specific and personal exemption.
FREEDOM OF CONSCIENCE FOR MEDICAL PERSONELL
While there is nothing in the proposed legislation that explicitly
compels health care providers to provide direct or indirect medically
assisted death; it does allow for individual provinces to do so. In fact,
"it would be up to individual provinces and territories to determine whether
some medical institutions would be allowed to decline to provide medical
assistance in dying. Nothing in Bill C-14 addresses this issue."[iii]
Why does the Federal government not consider it just as much of a
priority to protect the moral conscience rights medical personnel, as it is
protecting in protecting from all criminal liability medical practitioners
who end up killing a patient in error? If medical staff, opposed to
participation in medically assisted death, is mandated by their province to
participate; there will be indirect negative repercussions for all patients.
One such repercussion, is that some doctors will choose to leave their
practices, in order to practice in a location where they can freely exercise
their conscience. Some will undoubtedly stay put despite their objections.
However, what benefit are there to Canadians to be served by medical
professionals who are willing to violate their conscience, in what they
believe to be a form of murder, simply in order to keep their jobs. Explicit
protection for the freedom for all medical practitioners to refuse
involvement in medically assisted death of patients is essential.
. . . Those, including medical practitioners, who for religious or
other reasons do not believe in or are opposed to Physician or Medical
Assistance in Dying, should absolutely not avail themselves of this
assistance or be required to provide it. Neither should they have any right
to impose their views on me or our governmental institutions to deny my
right to choose this assistance. . .
. . . An up-to-date list of medical practitioners willing to provide
P/MAD should also be made readily available for urban and rural areas of
Canada both by the Government and by all medical and legal practitioners.
I am writing as a concerned physician who conscientiously objects to
physician-assisted death to request that you include provisions in Bill C-14
to protect the conscience rights of Canadian citizens who work as healthcare
professionals. Some have argued that patients' legal entitlement to
accessing assisted death trumps the ethical concerns of some doctors and
nurses. As an academic physician specializing in internal medicine and
intensive care medicine I frequently care for patients at the end of life,
and having carefully considered the relevant ethical and philosophical
issues, I conclude that conscientious objection to assisted death merits
robust legal protection. Given that some physician regulatory bodies have
already indicated that effective referrals for assisted death will be
mandatory, parliamentary intervention is required to uphold freedom of
conscience as guaranteed in the Charter of Rights and Freedoms.
Conscientious objection is reasonable and merits respect given the
following considerations.
1. Doctors should provide PAD only if it is both legal and
ethical
The Supreme Court has ruled that PAD ought not to be legally prohibited,
but it cannot define whether it is ethical for doctors to intentionally
cause death. In their decision on the legality of PAD, the Supreme Court
Justices stated that "nothing in this decision would compel physicians to
provide assistance in dying." The Justices recognize that we need not
automatically accept that PAD is ethical in the wake of this sweeping change
in law.
2. Assisted death is ethical only if certain insupportable
philosophical assumptions are accepted.
First, in contending that death is better than life for some patients,
advocates for PAD assume some notion of what it is like to be dead. Yet
the medical profession has no idea what it is like to be dead. All
beliefs about the afterlife (including the belief that there is no
afterlife) are metaphysical (quasi-religious) beliefs which cannot be
confirmed or refuted by scientific medical evidence. Medical care must be
based on evidence and observation, and doctors should not be forced to
practice medicine based on untestable quasi-religious assumptions.
Second, PAD advocates assume that respect for the patient's wishes,
rather than respect for the patient as a whole, is the foundational value of
medical ethics. Respect for the patient's wishes is unquestionably part of
respecting the patient, but valuing these wishes above the patient herself
would prevent doctors from ever refusing any patient request, even if it
would clearly harm her health. The long-accepted firm foundation for medical
ethics (including the duty to respect the patient's wishes) is the
incalculable intrinsic objective worth of the patient. Intentionally causing
death would require us to render valueless that which is of essential value:
the patient. In sum, given the tenuous assumptions underpinning the
case for PAD, doctors need not accept that PAD is ethical.
3. Providing an effective referral makes physicians complicit in
another physician's actions
If a father were to request that his daughter undergo circumcision
(i.e. genital mutilation), and I deliberately provided an effective referral
to a willing physician, I would be complicit in an extremely grievous breach
of medical ethics. This scenario is not ethically identical to PAD but it
effectively illustrates the moral and ethical responsibility attached to an
effective referral. This moral responsibility is recognized in law: doctors
are legally liable for referring a patient for a procedure that is forbidden
by law, even if requested by the patient (as was the case for PAD until
now). Knowingly referring a patient to a physician willing to cause
the patient's death makes doctors complicit in that death. Therefore, reason
and conscience prevent us from accepting the claim that PAD is ethical, we
ought not to provide referrals for PAD.
4. The Charter right of Freedom of Conscience applies to
healthcare professionals
Some argue that doctors cannot claim the Charter right of Freedom of
Conscience because we willingly accept responsibilities and duties that
limit our freedom when we commit to care for the patient. Accordingly,
doctors are duty-bound to deliberately cause death upon the patient's
voluntary request. This argument is successful only if PAD is ethical: the
commitment to care does not extend to providing unethical care. Doctors are
duty-bound to ensure that their patient's suffering is relieved by all
effective means available. Whether this commitment entails a duty to cause
death is a controversial moral question contingent upon certain
philosophical assumptions. Those who insist upon a duty to refer for
PAD impose their personal ethical beliefs and assumptions upon others. The
freedom of individuals to decide this issue and to act in accordance with
one's deeply held moral beliefs is precisely what the Charter
right of Freedom of Conscience protects.
5. Respect for conscientious objection promotes good medical care
Even given the assumption that PAD is ethical, robust respect for
conscientious objection is still ultimately good for patients. Patients
entrust themselves to their doctors, and doctors must be worthy of this
trust. The doctor's moral integrity - a commitment to acting in accordance
with moral norms - is foundational to his/her trustworthiness. Suppressing
conscientious objection prizes moral conformity over moral integrity and
systematically teaches physicians to suppress their basic moral intuitions
in favour of constantly evolving social conventions. It also teaches the
profession to be less sympathetic of and tolerant toward patients' diverse
moral beliefs. Thus, robust respect for conscientious objection should be
viewed as an important public good that upholds the quality of medical care.
[This claim has been convincingly argued in one of the world's most
influential medical journals, see White and Brody, JAMA
2011:305(17):1804-1805].
6. Respect for conscientious objection will not meaningfully
obstruct access to physician assisted death?
Making referrals mandatory does not immediately guarantee access as PAD
will not be routinely provided by any particular medical specialty and many
in the medical community do not know physicians willing to accept such
referrals. Conscientious objectors have proposed simple solutions allowing
patients to refer themselves for PAD. As an objector, I plan to transfer my
hospitalized patients to a different attending physician (an act
qualitatively different than an effective referral) to avoid unduly
obstructing access. Carefully considered policy frameworks for providing PAD
can show robust respect for conscientious objection while enabling universal
patient access.
These considerations support our claim that it is reasonable to object to
providing either assisted death or an effective referral for the same. Given
this reasonable position and the evidence that regulatory bodies are not
universally prepared to respect conscientious objection in this matter, I
urge you to enact protections in law for the substantial minority of
Canadian doctors and nurses who, for the sake of our unswerving commitment
to the value of our patients, cannot participate in deliberately taking a
life.
. . . Let me preface my comments by saying I am a General Medical
Practitioner, having practiced anesthesia, in-patient hospital work and
community family practice, including palliative care, since 1987. I have
practiced in the same small Ontario town since in 1991.
As a health care practitioner, I have a conscientious objection to
participation in Medical Aid in Dying (MAD) both to performing the act and
also to referral to have the act performed. . .
"Consistent approach to medical assistance in dying across Canada". I
agree. Although one could argue that C-14 needs to respect Provincial
responsibilities for health care, more needs to be done to ensure
uniformity. Provincial Ministries of health and more importantly Governing
Professional Colleges have already shown a significant disparity of
approaches to the implementation of MAD especially in regards to conscience
protection. The interim policy of the College of Physicians and Surgeons of
Ontario (CPSO) would mandate an effective referral from a conscientious
objecting doctor on June 7. This goes against the Charter right of
conscience and would not satisfy C-14's goal of uniform approach. C-14 needs
to support conscience rights of objecting health care providers and those of
faith-based health care facilities. . .
. . . "Respect the personal convictions of health care providers." Yes,
but this statement is too weak! Consider changing "respect" to "protect" for
a more appropriate balance. . .
3. Protection for Conscience Rights: Section 241.31 (1):
This states that a medical or nurse practitioner must respond to a request
for euthanasia by providing the information required to the recipient or to
the Minister of Health. It must be explicitly stated that a practitioner who
has conscientious objection against euthanasia not be discriminated against
for refusing any involvement. This protection should NOT be left to the
provinces. The Charter of Rights applies to all Canadians. The Bill should
also explicitly state religious institutions be protected by the Charter
of Rights, from engaging in this legal killing which is against their
consciences and values.
I am a physician, in my 35th year of practice. I am a hematologist, with
considerable experience in providing care to patients who are dying. I have
recently completed 12 years as an Associate Dean of Medical Education. . .
. . . The legislation must provide explicit protection of those health
care professionals who choose not to participate directly or through
so-called effective referral in MAID. In addition to being protected from
the requirement to participate, they must be protected from negative
repercussions of that choice throughout their professional lives, be it in
the initial selection processes for admission to a health care profession,
during education and training, and in employment and advancement throughout
their careers. Every other jurisdiction with some form of MAID has found a
way to implement it without any coercion of health care professionals.
Surely we can do the same.
Similarly, the
legislation must ensure that institutions and facilities providing medical
care, including long-term care, have the freedom to recuse themselves
from any participation in MAID. . .
Conscientious Objection
. . . HealthCareCAN is supportive of the language in the Preamble of Bill C-14,
stating that the Government of Canada has committed to, "respect the
personal convictions of health care providers" and the assurance by the
Federal Health Minister, the Honourable Jane Philpott that, "under this
bill, no health care provider will be required to provide medical assistance
in dying." As outlined in the federal Department of Justice's analysis of
Bill C-14, "freedom of conscience and religion are protected from government
interference by paragraph 2(a) of the Charter." Respect for conscientious
objection will be relevant for the range of health providers that will be
involved in medical assistance in dying.
Background materials provided by the Government state that, "[b]alancing
the rights of medical providers and those of patients is generally a matter
of provincial and territorial responsibility." HealthCareCAN supports the
government's commitment, "to work with provinces and territories to support
access to medical assistance in dying, while respecting the personal
convictions of health care providers."
Bill C-14 is silent on the role of hospitals and healthcare organizations
in assisted death. Many healthcare institutions across Canada operate under
a specific mission, vision, set of values and/or ethical framework. Our
members across the country are seeking clarity, either federally or
provincially, of their ability to honour their missions and ethical
frameworks while ensuring that patient care remains a top priority.
Access to Medically-Assisted Dying
HealthCareCAN commends the federal government for its commitment (as
outlined in Bill C-14 background materials) to:
"…work with provinces and territories on the
development of mechanisms to coordinate end-of-life care for patients who
want access to medical assistance in dying. This system would help connect
patients with a physician or nurse practitioner willing to provide medical
assistance in dying, and support the personal convictions of health care
providers who choose not to participate. It would also respect the privacy
of those who are willing to provide this assistance. This system could also
offer other end-of-life care options to both patients and providers."
. . . HealthCareCAN supports the establishment of centralized bodies and
information systems to facilitate access and a patient-centred response, and
to ensure high quality information and continuity of care, while also
respecting the right of a healthcare provider to conscientiously object. We
support centralized systems that can be directly accessed by patients,
families, health care professionals and institutions.
. . . Bill C-14 must provide conscience protection to physicians, all
medical professionals, and institutions who are opposed to assisted suicide
and euthanasia and therefore refuse to participate in euthanasia or assisted
suicide in any way. Freedom of conscience is a constitutional right to all
Canadian and must therefore be fully protected. This includes protection for
Canadian taxpayers from being forced to participate in assisted suicide
against their will through their tax dollars. . . .
. . . It is concerning to me that Bill C-14 does not protect right of
conscience for medical practitioners, so I am asking that you protect
chartered rights by clearly stating that no doctor or institution will be
forced to participate in assisted suicide or euthanasia against their own
conscience. . .
7) Provide conscience protection for medical practitioners who believe it
is morally wrong to kill another human being. . .
5. Add conscience protection language akin to the Civil Marriage Act
to C-14 in order to protect the best practices of medicine. I recommend
adding to the body of C-14 the following:
Conscientious Protection
Physicians and other health practitioners are free to refuse to participate
in or refer for assisted suicide and euthanasia in accordance with their
professional medical opinions or sincerely held religious beliefs. 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, in respect of
refusal to participate in or refer for an assisted suicide or euthanasia, of
the freedom of conscience and religion guaranteed under the Canadian Charter
of Rights and Freedoms.
. . . I am writing you today to express my deep concerns with the
legislation of Bill C-14 your government tabled on Thurs, Apr 14. It is
imperative that clear conscience protections for health care workers and
facilities be set in place. Many people, including myself, are opposed to
this legislation. It is unconstitutional that people should be forced to
participate against their deeply held convictions, either through referral
or by doing the procedure. Further to this, I would then question if you
would respect my decision and those who would choose palliative care to die
a natural death.
If this bill is passed without amendments, Canada will be the only
country in the world that does not provide legal protections for those who
cannot participate in medical assistance in dying because of their moral
convictions. There is no guarantee that the provinces will even pass
legislation on this topic. Legislation must clearly spell out the
protections provided by the Charter of Rights and Freedoms,
ensuring caregivers and their organizations will be protected from coercion
and discrimination.
Why should physicians and health care workers be forced to put their
careers on the line and open themselves to professional disciplinary action
simply because they wish to follow their conscience? Why should the closure
of facilities be allowed because they cannot provide medical assistance in
dying? We need dedicated and caring health professionals we can put our
trust in.
. . . I respectfully request the following amendments:
b) create a referral process to ensure patients who have requested MAID
do not have to find a willing provider on their own
c) ensure all publicly funded hospitals, hospices and long-term care
facilities allow MAID on the premises.
. . .Should the dying patient have to search for Medical Assistance from
a hospital bed because the legislation protects the medical professional but
fails the patient? Should patients have to be moved to another institution
to access MAID? Legislation is meant to protect these vulnerable people, to
support their charter right to choice, and to provide humane, universal
access to MAID throughout our country. Legislation must mandate a referral
process. . .
. . . we would like to see:
- that doctors and health professionals will be protected by the
chartered rights, stating that they will not be forced to participate in
any way.
. . . Page 2: Lines 13-23 I am concerned about "non legislated" processes
to address conscientious objection, advance consent, mature minors and
mental illness. These aspects of MAID should not be left to the provinces
and territories concerning conscientious objection. Individuals may opt out
of providing MAID, but publicly funded institutions across the country must
find a way to allow access to MAID in their facilities, if not – remote
areas and small communities may not have access to this necessary medical
service. This directive should come from a federal level. . .
. . . There are many medical individuals who will never want to
participate in MAID. While their desire to opt out must be honoured, it is
important to recognize that these individuals will continue to place
obstacles in the path of implementation of MAID, and this must not be
allowed. . .The choice to not participate in MAID has never been in peril.
Dr. Will Johnston: . . .We
have heard four times, I think, from Minister Wilson-Raybould that nothing
in this act compels anyone to become involved in assisted suicide and
euthanasia. That, I think, suggests that the time may be right that those
words to actually appear in this bill: "nothing in this act compels". That
could appear in the preamble. That could appear in another section. But I
think this would go a long way toward giving that central direction to
conscience protection and the protection of professional judgment which is
so desirable. . .
Mr. Mark Warawa: . . . Dr. Johnston, regarding "nothing compels a physician to" in the
preamble, preambles are not usually seen by the court as the guiding
principles as it would be if they were actually in the bill. I think all
of us have heard from witnesses, the number one issue that we're hearing
over and over again is protect the conscience rights of physicians,
nurses, pharmacists, medical practitioners. And we we need to get it right when we
protect vulnerable Canadians and we need to protect the conscience rights. The
Supreme Court in the Carter decision highlighted that.
So it is at this point in the legislation that's proposed in Bill
C-14, it's, it's a silent on that. And it's been explained by the
minister and the department that it does not say anyone is forced
to participate in this, but it is silent on this. Would it help, instead
of having it in a preamble, actually having it in the bill that it would
be a criminal offence to force, intimidate, coerce a physician or
health care practitioner, nurse practitioner, pharmacist to
make it a criminal offence to actually force somebody to participate against their will?
Now, what we have in the Carter decision is it was a, it was legal to commit
suicide, but it was illegal to assist somebody. Carter has said
you can, under certain criteria, you can assist somebody. But, the pendulum has swung
to where the special committee said well you must refer, but I think Canadians
are, that I'm hearing, is they want the conscience protected.
So my question to you is if
C-14 was amended to make it a criminal offence to coerce,
intimidate, force a physician, do you think that would deal with the
issue as far as conscience protection?
Dr. Will Johnston: . . . it is true that the
strongest possible statement of conscience rights would be contained in a
section of the Criminal Code which actually provided not just a
ringing endorsement of the section 2 Charter right to conscience -
which has never been properly supported in jurisprudence that I'm aware of -
but that would also provide actual penalties for discrimination against a
person who was contemplating entering a health care profession, was in a
health care profession, was in any way involved in the care of a patient,
and where that person was being coerced to either renounce their
determination not to participate in assisted suicide and euthanasia or to in
any other way disadvantage that person. And so I would, of course, heartily
endorse such a thing. And I think that it would be appropriate as a balance
against this amazing innovation in Canadian law, that a statement of
exemption from criminal prosecution, which is as groundbreaking as the
rewrite of section 241, be accompanied by an equally groundbreaking
assertion of conscience rights.
And I would challenge the committee to take this up as a special issue,
because this is not the last contentious thing that's going to come before
us. Medical science and genetics will deliver so many more contentious
questions to us in the future. And are the conscience rights of the relevant
professionals or involved practitioners to be thrown under the bus every
time a new access right is declared by a court or by Parliament? It is, the
time has come to decouple conscience rights from access rights. And this
could most effectively be begun by a ringing endorsement of conscience
rights and the protection of them in the Criminal Code.
Justice Centre for Constitutional Freedoms
[Full
Text]
Recommendation: In order to comply with Carter, Bill C-14 should
codify protections for the conscience rights of physicians, nurses,
pharmacists, and other health care workers, as well as health care
organizations and institutions, to refuse to participate in, and refuse to
refer for MAID.
The Supreme Court of Canada decision in Carter in no way compels
doctors or other healthcare workers to cooperate unwillingly in providing
MAID. Carter was predicated on two key factual conditions: a
willing patient and a willing doctor. The applicants in Carter
neither sought nor received a Charter right to compel doctors and
other healthcare practitioners to provide, or refer for, MAID.
Despite the foregoing, provincial Colleges of Physicians, as well as
Nurses' Associations have instituted requirements that their respective
members participate in MAID, in disregard of conscience rights, on pain of
professional sanction and reprisal. Parliaments' opportunity is manifest:
the offending professional requirements violate both the law in Carter and
the Canadian Charter of Rights and Freedoms (the "Charter")
protections under s. 2(a), and s. 7.4
Parliament can and should bring uniformity and clarity to the issue of
conscience rights and MAID. Doctors, educators, medical students5
and the various Colleges would all benefit from the inclusion in Bill C-14
of the protections for conscience and religious rights, as Carter
mandates.
In addition to legal reasons, there are also strong pragmatic reasons for
protecting conscience rights. Tens of thousands of Canadians trust and rely
daily on the premise that their doctors and nurses will act in an ethical
and conscientious manner in the provision of service. Provincial Colleges of
Physicians have ethical requirements for doctors, and expect physicians to
be governed by a strong sense of moral and ethical responsibility in daily
practice.6 Yet many of the same Colleges of
Physicians permit no room for abstention on the basis of conscience or
religion.7 Parliament must consider the somber
repercussions of mandating the overriding of a physician's conscience in one
aspect of service (such as MAID) and the necessary implications this could
have in other circumstances where a physician's ethics and conscience is
expected to govern.
It is also of importance for Parliament to recognize that, while there is
a right to die under the requirements set forth in Carter, those
who avail themselves of MAID will be gone, while those who are tasked with
implementing it will remain. It is in the best interests of all Canadians
that those practitioners who care for patients on a daily basis be able to
perform their duties with a clear conscience, and the knowledge that they
have been true to both themselves and their perception of their medical and
ethical mandate.8
We consequently continue to recommend the inclusion in Bill C-14 of
codified protections for conscience as anticipated in Carter,
similar to the recognition and protection of conscience and religious rights
in the Civil Marriage Act.9
Mr. Jay Cameron: . . . While I'm here tonight to
talk about conscience rights specifically, I think it's important, given
what I've heard here so far tonight, to mention that we believe that Bill
C-14 gets a number of things right. . .
. . .
It was in the context of noting the need for legislative reform to allow for
medical assistance in dying that the court discussed and reiterated the
conscience and religious rights of medical practitioners, stating that
"nothing in the declaration of invalidity which we propose to issue would
compel physicians to provide assistance in dying." That's at paragraph 132.
Instead the court underlined that "The
Charter rights of patients and
physicians will need to be reconciled...". It was within the rubric of
reconciling those rights that the court in Carter suggested statutory
balancing, statutory address. Unfortunately, Bill C-14 fails to do that.
It's our continued recommendation that, in order to comply with
Carter, Bill C-14 should codify the protections for the conscience
rights of physicians, nurses, pharmacists, and other health care
workers, as well as health care organizations and institutions, to
refuse to participate in and refuse to refer for MAID.
The applicants in Carter neither sought nor received a charter right
to compel doctors or health care workers to provide or refer for MAID.
Despite that fact, the colleges of physicians as well as nurses'
associations have instituted requirements that their respective members
participate in MAID in disregard of members' conscience rights, on pain
of professional sanction and reprisal in some cases. This is
Parliament's opportunity to bring uniformity and clarity to the issue of
conscience rights, and was made for that reason.
I have two pragmatic reasons in addition to the reasons that were
set forward before the subcommittee. First of all, tens of thousands of
Canadians trust and rely daily on medical practitioners to perform their
duties in an ethical and conscientious manner in the provision of
service. The provincial colleges of physicians have ethical requirements
for doctors, and they expect physicians to be governed by a strong sense
of moral and ethical responsibility.
We say that this committee has to consider the ramifications of
overriding a physician's conscience in one aspect of service and then
expecting that same physician to act in a conscientious or ethical
manner in all of these other service requirements.
We also say it's important for Parliament to recognize that what Carter
was talking about was a balancing of rights. There is a right to die
recognized in Carter, but there are also rights for medical practitioners.
It's important not to lose sight of the forest for the trees. The people who
under this current Bill C-14 will be implementing MAID are the people who
will wake up tomorrow morning, look themselves in the eye, continue on with
their daily business, and know that they performed their duties in an
ethical and conscientious manner. The people who have availed themselves of
MAID will be gone, but the medical practitioners will still be here.
In my respectful submission - I don't mean to be trite - is it a proper
balancing, looking at somebody's life on the verge of expiring, weighed
against the decades of medical practitioners who still, on a day-to-day
basis, must act in a conscientious and ethical manner? Is it not
disproportionate to focus solely, or almost exclusively, on the rights of
patients as opposed to those who are tasked with implementing MAID?
We say it is. We say a proper balancing would never oblige an individual to
participate in MAID. There have been lots of discussions about whether or not
it's legal or constitutional to include a protection in Bill C-14 for conscience
rights. We say it is.
First of all, it is clear that right now Bill C-14 is dictating how MAID can
be implemented and who can implement it. It is making regulations. It is making
laws, or it purports to make laws, with respect to how MAID is to be carried out
in the province. If the province is the sole entity that can make laws with
respect to MAID, then this legislation would be offside. It's clear that this is
not the case. We say it's apparent that conscience rights can be protected.
I would direct your attention to the circumstances in this example, one out
of a number that we've thought of. Of course, the general rule with respect to
culpable homicide is that there's no killing. It's sort of similar to the
general rule that if you are a Canadian individual or organization, you have to
pay taxes, because federal taxes are the purview of Parliament. Charities are
controlled by the provinces, under section 92 of the Constitution Act, 1867, and
yet charitable organizations have to make application to the federal government
to both obtain charitable status and continue it. The reason that's the case is
that otherwise they would not be allowed to do what they are allowed to do,
which is accept tax-exempt donations.
In summation, I'll say that there are other analogous circumstances, such as
in the Civil Marriage Act, where there are enumerated protections for conscience
rights. We say it would be a mistake not to codify the same in this legislation.
Mr. Michael Cooper: . . . . Mr. Cameron, you stated that
it was your opinion that Parliament has flexibility constitutionally to
enact conscience rights protections. And you cited some examples of where
Parliament has enacted laws or regulations in other contexts, but perhaps
you could elaborate a little bit on what powers Parliament has to enact
conscience rights protections.
Mr.Jay Cameron: We say this is an unusual situation. It's important not to miss that what's
happening here is the carving out of an exemption for culpable homicide. And because
Parliament is carving out that exemption, we say that Parliament can set the
parameters with respect to who is instituting MAID, how it's being
instituted.
And we say the 15-day waiting period, for example, would be constitutional,
because that is within the boundary of that exemption that's being carved out.
We say it doesn't trench on the provincial powers. We say it's necessarily
incidental for the exemption that's being carved out.
And we know that the Supreme Court of Canada has given that mandate to
Parliament. So the expectation, when I read Carter, is that the court expects Bill
C-14 to balance those rights, and that is what is conspicuously missing. We
say that there's nothing wrong with putting that protection in the Criminal Code
power, under the Criminal Code power in section 91 of the 1867
Constitution
Act.
Mr. Michael Cooper: Right. And also on the
area of health care. I agree with you,.
Parliament would have ample room in terms of criminal law power to legislate
in this area but also the Supreme Court at paragraph 53 in Carter specifically said
that the area of health care is an area of concurrent jurisdiction, in which
both the federal and provincial governments can legislate. So I think it
even allows greater flexibility in which to legislate.
But certainly Parliament does have the ability to legislate, but I guess then
the question becomes how far Parliament does Parliament have in the way of
legislating. A similar question was posed to a witness earlier this evening,
Professor Pothier. And she seemed to suggest that Parliament could enact conscience
protection legislation along the lines, for example, of section 3.1 of the
Civil Marriage Act, but she then seemed to say that that would be about all
that Parliament could do in the way of conscience protection legislation.
So could you perhaps elaborate on how far Parliament can go to protect
conscience rights?
Mr. Jay Cameron: Without a reference to the Supreme
Court of Canada, it's impossible to say entirely 100% for sure. I can't say.
I feel like, I would be delving into the realm of speculation to say.
Suffice to say, I think this bill can enact protections with respect to
conscience rights. I think that under both the criminal power and the health
power, that Parliament has that jurisdiction. I also think the Supreme Court of
Canada has sort of tipped its hand that it intends to be deferential with
respect to this legislation.
So that's my response.
Mr. Michael Cooper: . . . and I would simply note that if Parliament did not act, it would be left to the
provinces, and that would create a patchwork of inconsistencies. Indeed, it
could leave a situation in which there would be no conscience protections
anywhere, or at least in certain provinces. And that would make Canada unique
compared to every other jurisdiction that has some form of physician-assisted
dying. In every other jurisdiction there are some forms of conscience protections
enacted. Canada would have a vacuum in that regard, and that obviously would be
very concerning.
I don't know if you have anything further to elaborate, Mr. Cameron.
Mr. Jay Cameron: I would say this, that Justice
Dickson in Edwards Books at paragraph 143 counselled the
avoidance of inquiries into people's religious beliefs. And from our
perspective, this doesn't have to be made to be about religious beliefs.
There are long-standing, thousands of years old beliefs, with respect to the
killing of your patient, that were originally enshrined in the Hippocratic
Oath, the Nightingale Pledge, which is the nurses' version of the
Hippocratic Oath. They've been in existence for centuries in various forms,
and many, many physicians today - you heard the statistics, 70% - don't want any
part of this. Right. And you don't erase centuries of conscience protections
that aringrained
in the medical profession with the slash of a pen. They're there, and
whether they're ethical or they're conscience or they're religious-based, or it's
just, "We feel uncomfortable about it, awe don't
want to participate", they have the right not to do that under the
Charter. That's our position.
Mr. Chris Bittle: Mr. Cameron, I'd like to turn to
you. Is there, leaving aside medical assistance in dying, is there another medical
procedure out there in which a physician has been coerced against their will
or against their own conscience or beliefs that you're aware of?
Mr. Jay Cameron: I think that the answer to your question lies in the history of the medical
profession.
Mr. Chris Bittle: Let's not go back to the history of the medical profession.
Today in Canada, let's look at what can you answer based
on today in Canada, what other medical procedures you're concerned about, where physicians are struggling with conscience?
Mr. Jay Cameron: I don't know of, I don't know of an analogous situation where the consequence of the act of a
physician is the intended death of the patient, so there's nothing analogous
that I
can think of.
Physicians and nurses were trained and raised up to care for patients and
provide health care. I share the concern that another panellist mentioned
tonight that killing a patient isn't consistent with the idea of health care
that-
Mr. Chris Bittle: But again, Mr. Cameron, you're
venturing off. In terms of the specific individual, there's no other case
you that can point to, I guess is the simple answer, that there is a concern
with conscience rights in the medical profession.
And my next question goes to the colleges of physicians across the country that are
self-regulating in terms of ethics, as are the bars of the various provinces.
Why are you advocating for regulating the professions, which clearly isn't
within the jurisdiction of the federal government?
Mr. Jay Cameron: I'm not advocating for regulating professions, but I would note that every
single month there are lawyers who are disbarred for malpractice and for
improprieties.
And it's clear from the study that was released today that, whether it's
intentional or accidental, the medical profession makes a lot of mistakes and
kills a lot of the patients that it's supposed to be helping.
Mr. Chris Bittle: The medical profession, like the legal profession, gets to determine what is
unethical.
Mr. Jay Cameron: Only so far, sir. Parliament
decides what's criminal, and there are limits to what the purview is of
both the law societies as well as the medical professions. They have a
limited mandate, whereas Parliament's mandate is much larger and broader.
Mr. Chris Bittle: Okay. In terms of conscience rights for institutions, can you point me to any
Supreme Court decision that guaranteed conscience rights to a publicly funded
institution?
Mr. Jay Cameron: I can point you to the freedom of
association under section 2(d) of the Charter, which is not just a right
for individuals, but it's also a collective right. And collectives form around the
notion of doing what they can do collectively, what they can do
individually. And in -
Mr. Chris Bittle: The answer's no.
Mr. Jay Cameron: In this case.... Well, I don't
know. If you want to tell me what my answer is....
Mr. Chris Bittle: Well, I'm asking you, is there a
Supreme Court case that points to that? You're dancing around the subject,
but is there a Supreme Court case, yes or no?
Mr. Jay Cameron: I'd refer you to the case of the Mounted Police Association.
Mr. Chris Bittle: I'm sorry.
Mr. Jay Cameron: The Mounted Police Association with respect to the associational rights of the
collective.
Mr. Chris Bittle: So it's a union case. So you can't point to a publicly funded institution.
That being said, doesn't that lead to a slippery slope, that if we grant conscience rights
to institutions in this one exemption, we're opening up the Charter to
issues of employment or access to a publicly funded institution for members
of that particular religious group only? And how can we limit those Charter
rights to your very narrow request?
Mr. Jay Cameron: With respect, sir, I think that you're
blurring the issue. The issue is whether or not a group of individuals who
have formed around a common creed can decide whether or not they're going to
participate in MAID - that's the question. We say they can-that's the answer.
. . . For those doctors who object to such measures, there is little
mention in the Bill of conscience protection. According to the Coalition of
Health Care and Conscience, a coalition of over 5000 objecting physicians,
this is a signal from the government that this issue will be left up to
provincial jurisdictions. . .
Summary of concerns with the text of Bill C-14
B. As tabled, Bill C-14 does not protect the rights of medical
professionals and students.
B. Upholding the rights of medical students and professionals
B1. Medical students and professionals have the right to act according to
conscience and to fundamental medical principles. However, there are already
cases of students being discriminated against in undergraduate programs as
well as medical schools because of their beliefs. We need the federal
government to protect the rights of medical students and professionals to
decline to participate in assisted suicide as well as not be required to
provide effective referrals.
Amendment:
i. Rather than S 241.31(3) of Bill C-14, insert a clause that provides
federal guarantee of the rights of medical students and professionals,
explicitly ensuring that no one is required to provide assisted suicide
and/or an effective referral for assisted suicide, even to the Ministry of
Health.
I urge you to please:
1. ensure protection for frontline workers, myself alike, who truly value
life in its entirety. Should we encounter requests from someone to assist to
die, may we be protected, in all aspects of our being (ie. legally,
emotionally, and physically), to be able to simply say "no", that is: to
respect the conscience rights of all institutions and all health care
workers who choose not to participate in or refer patients for assisted
suicide. To acknowledge the plurality of views on the subject by providing
clear safeguards so that no institution or health care provider will suffer
discrimination, penalties or loss of employment for refusing to participate
in or refer patients for assisted suicide.
As saying "yes" would be contrary to my conscience, and ultimately to my
professional and ethical duty as an NP. Without this specific safeguard,
Bill C-14 will bring moral distress and anxiety, which may wrongfully force
us to succumb to actions we are strongly opposed to. . .
241.31 (1) states that, unless otherwise exempted, health care
practitioners who received requests for medical assistance in dying "must
[...] provide the information required by those regulations to the recipient
designated in those regulations or [...] the Minister of Health." (241.31
states similarly for pharmacists.) Section (3) seems to suggest that this is
exclusively for statistical and information purposes. However, it could
potentially be interpreted as a duty to refer for objecting health care
professionals. This section would benefit from a clear statement either
confirming or refuting whether it is intended to create a duty to refer. . .
. . . Respect the conscience rights of all medical professionals involved
in assisted suicide and euthanasia. This includes not forcing them to make
"Effective Referrals" or any referrals. It is not reasonable to respect
one's medical opinion and then force them to effectively refer to carry out
the contrary opinion. For instance, if in one's medical opinion removing a
kidney is grave mistake for treatment, he would not be forced to refer to a
surgeon who would carry out that procedure. There should not be any
penalties for exercising your medical expertise. . .
. . .I write today asking you to protect the vulnerable and to respect
the conscience rights of health care workers, hospitals, and other care
facilities. I ask the government to provide legislative protection for
health care workers and facilities that object to euthanasia/assisted
suicide because of their moral convictions and/or institutional mission and
values. Those who oppose euthanasia/assisted suicide should never be forced
to perform the procedure or arrange for it to take place (referral). No
foreign jurisdiction in the world that has legalized euthanasia/assisted
suicide has forced health care workers or facilities to act against their
conscience.
The Government of Canada has stated that it wishes to have this
legislation implemented consistently across the country. If that is the
case, legislative protection of conscience rights at the federal level would
provide such consistency. . .
1) While the proposed law is explicit in protecting health care providers
who engage in euthanasia and assisted suicide, there no similar clause for
the right of refusal for clinicians or organizations despite that
legislations elsewhere make this clear. This includes the right to refuse to
become complicit in what we believe is doing harm by referring for physician
hastened death.
. . . Please also ensure the protection of Canadian health care workers
(doctors, nurses, pharmacists, other), who have dedicated themselves to
saving lives and improving quality of life – not ending them – so that their
freedoms of conscience and religion are fully protected under the law.
Please fight to protect these freedoms even to the extent of giving them the
right to refuse referral of services, and in doing so dismissing them from
being forced to participate in the process.
. . . medical practitioners who do not wish to provide Medical Aid in
Dying should not be compelled to do so, but they should be required to refer
a patient requesting it to a colleague who will. . .
1. Conscience Protection
Bill C-14 has omitted to include any protections for objecting
physicians. We see this as a serious infringement on the Charter rights of
doctors, nurses and pharmacists who should in no way be coerced, pressured
or discriminated against for taking a conscientious stand against any
involvement in assisted suicide or euthanasia.
Where is the right to choose for those millions of Canadians who do not
want to be served by physicians who have been involved in or accomplices in
the deaths of their patients?
We strongly urge the Government to implement rigorous conscience
protection for objecting physicians. There is no jurisdiction in the world
that forces physicians and other medical practitioners to act against their
conscience. This should not be left to the Provinces to decide.
Living with Dignity
Mr. Ahmend Hussen: Secondly, you also spoke about,on
the next page of your submission, you spoke about there being no justification for
imposing any duty to implement this political decision on Canadian doctors
and institutions.
Do you feel that Canadian doctors would be forced to conduct medical
assistance in dying?
Dr. Catherine Ferrier: Well, in Quebec right now,
doctors who are not willing to conduct it themselves are obliged to send the
patient along a path that will ensure that it will be done. So that, to me, is
similar to what Dr. Blackmer mentioned about Ontario, which requires referral
directly to someone who will do it. Most people who object to euthanizing
patients would also object to sending them to their death, not because
of our own needs but because we think it is contrary to the needs of our
patients.
Mr. Ahmend Hussen: Mr. Racicot, have you any opinion
on that?
Mr. Michel Racicot: Well, you see, the doctors also have a right
to freedom of conscience, and a doctor who feels that it should not
do that for its own conviction and for the good of the patient should
not be obliged to do it and should not be obliged, either, to refer to
someone who will do it, as is the case in Quebec.
It is very important, if we have to have this law apply equally and
similarly across the country, that this committee recommend that the
objection of conscience, both for individuals and institutions, be
implemented. And I personally think that you have the jurisdiction, because
it's, in theory, within your jurisdiction over criminal law.
In Quebec at the moment, certain hospitals do not perform abortions, and
they are not forced to perform abortions, but they are forced to perform
medical aid in dying. This is why we need the institutions to be protected
as well.
. . . While I do not agree with any form of mercy-killing or assisted
suicide, I do ask that you would consider these preliminary restrictions on
euthanasia before it sweeps across our country putting vulnerable patients
at risk. . .
- It be explicitly stated that healthcare providers
be allowed to refuse to perform and refer for physician-assisted suicide on
the grounds of conscientious objection. Conscience rights are a protected
freedom under Section 2 of the Canadian Charter of Rights and Freedoms and
should not be violated.
Problem: Protection of 'Conscience Rights'
Bill C-14 offers no statutory protection for conscience rights of
healthcare professionals, whether doctors, nurses or pharmacists, who object
on principle to being involved in assisted suicide or to playing any role in
the chain of causation that results in assisted suicide.
Proposed Amendment:
All members of the healthcare professions have the right to "opt out" of
assisted suicide, and they have no obligation, legal or otherwise, to refer
any patient seeking assisted suicide to other practitioners for that
purpose. No healthcare professional should face professional, disciplinary
or other sanctions for refusing to facilitate an assisted suicide.
Rationale:
Many doctors decline to make assisted suicide referrals because they
would feel morally complicit in any ensuing suicide. They believe they are
enabling suicide as much by referring patients as by assisting suicides
directly.