Medical Assistance in Dying in Canada: An Ethical Analysis of Conscientious and Religious Objections

Abstract

Background: The Supreme Court of Canada (SCC) has ruled that the federal government is required to remove the provisions of the Criminal Code of Canada that prohibit medical assistance in dying (MAID). The SCC has stipulated that individual physicians will not be required to provide MAID should they have a religious or conscientious objection. Therefore, the pending legislative response will have to balance the rights of the patients with the rights of physicians, other health care professionals, and objecting institutions.

Objective: The objective of this paper is to critically assess, within the Canadian context, the moral probity of individual or institutional objections to MAID that are for either religious or conscientious reasons.

Methods: Deontological ethics and the Doctrine of Double Effect.

Results: The religious or conscientious objector has conflicting duties, i.e., a duty to respect the “right to life” (section 7 of the Charter) and a duty to respect the tenets of his or her religious or conscientious beliefs (protected by section 2 of the Charter).

Conclusion: The discussion of religious or conscientious objections to MAID has not explicitly considered the competing duties of the conscientious objector. It has focussed on the fact that a conscientious objection exists and has ignored the normative question of whether the duty to respect one’s conscience or religion supersedes the duty to respect the patient’s right to life.

Christie T, Sloan J, Dahlgren D, Konging F.  Medical Assistance in Dying in Canada: An Ethical Analysis of Conscientious and Religious Objections.  BioéthiqueOnLine, 2016, 5/14

Standing Committee on Justice and Human Rights

House of Commons, Parliament of Canada (May, 2016)

Re: Bill C-14


Introduction

In February, 2015, in the case of Carter v. Canada (Attorney General), the Supreme Court of Canada struck down the criminal prohibition of physician assisted suicide and physician administered euthanasia, but suspended the ruling for one year to give federal and provincial governments an opportunity to draft new laws that conform to the decision.  In January, 2016, the Court granted an extension of the suspension to 6 June, 2016.  In the interim, it allowed euthanasia to proceed in Quebec under provincial legislation in force there, and allowed individuals seeking physician assisted suicide or euthanasia elsewhere to apply to a superior court to obtain authorization.

A special joint committee of the Canadian House of Commons and Senate began work in January and produced a first report in the last week of February.  On 14 April, 2016, the Liberal government introduced Bill C-14 to implement the Carter decision.  The House of Commons Standing Committee on Justice and Human Rights was responsible for reviewing the bill, amending it if need be, and returning it to the House of Commons for third reading.

Five hearings were held from 2 to 5 May, during which witnesses made presentations.  The Commitee also solicited submissions from the public, and specifically solicited submissions from the Protection of Conscience Project and others, with a deadline of 2 May, 2016.

The Project’s submission met the deadline.  However, it was not distributed to Committee members before the Committee concluded its deliberations on 11 May.  It is likely that an unknown number of other briefs submitted by the public were also not distributed.

For details and links to Committee materials and presentations relevant to freedom of conscience, including extracts from briefs and edited videos with transcripts, visit the Project’s Standing Committee web page.

Project proposes amendment to Canadian euthanasia/assisted suicide bill to stop coercion, intimidation

Amendment to Bill C-14 to prevent coerced participation in inflicting death

News Release
For immediate release

Protection of Conscience Project

The Protection of Conscience Project has proposed an amendment to Bill C-14 to prevent coercion, intimidation or other forms of pressure intended to force citizens to become parties to homicide or suicide.  The amendment is set out in a submission to the Standing Committee on Justice and Human Rights.

Bill C-14 is the bill proposed by Canada’s Liberal government to implement the 2015 decision of the Supreme Court of Canada in Carter v. Canada (Attorney General. It will legalize assisted suicide and euthanasia administered by medical an nurse practitioners.  However, the Bill as introduced does nothing to prevent intimidation and coercion of objecting health care workers to force them to participate in or facilitate the procedures by referral or similar means.

The Project’s proposed amendment is an addition that does not otherwise change the text of  Bill C-14. Nor does it touch the eligibility criteria proposed by Carter, nor the criteria or procedural safeguards recommended by the Special Joint Committee or Provincial-Territorial Expert Advisory Group.  It simply establishes that, as a matter of law and Canadian public policy, no one can be compelled to become a party to homicide or suicide, or punished or disadvantaged for refusing to do so.

The Protection of Conscience Project does not take a position on the acceptability of euthanasia or physician assisted suicide or the merits of legalization of the procedures. The Project’s concern is to ensure that health care workers who object to providing or participating in homicide and suicide for reasons of conscience or religion are not compelled to do so or punished or disadvantaged for refusal.

“Coercion, intimidation or other forms of pressure intended to force citizens to become parties to homicide or suicide is both an egregious violation of fundamental freedoms and a serious threat to society that justifies the use of criminal law,” states the submission.

“Other countries have demonstrated that it is possible to provide euthanasia and physician assisted suicide without suppressing fundamental freedoms.  None of them require ‘effective referral,’ physician-initiated ‘direct transfer’ or otherwise conscript objecting physicians into euthanasia/assisted suicide service.”

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Contact:
Sean Murphy, Administrator
Protection of Conscience Project
Email: protection@consciencelaws.org

Submission to the Standing Committee on Justice and Human Rights(Parliament of Canada)

Re: Bill C-14 – An Act to amend the Criminal Code (medical assistance in dying)


I.    Introduction
I.1     The Protection of Conscience Project does not take a position on the acceptability of euthanasia or physician assisted suicide or the merits of legalization of the procedures. The Project’s concern is to ensure that health care workers who object to providing or participating in homicide and suicide for reasons of conscience or religion are not compelled to do so or punished or disadvantaged for refusal.

I.2    The arguments supporting this submission are more fully set out in the Project’s submission to the parliamentary Special Joint Committee.


II.    Coerced complicity in homicide and suicide
II.1     Carter should not be understood to mean that a learned or privileged class, a profession or state institutions can legitimately compel people to be parties to homicide or suicide – and punish them if they refuse.

II.2     This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them and a serious violation of human dignity.  From an ethical perspective, it is incoherent.  From a legal and civil liberties perspective, it is profoundly dangerous.

II.3     Other countries have demonstrated that it is possible to provide euthanasia and physician assisted suicide without suppressing fundamental freedoms.  None of them require “effective referral,” physician-initiated “direct transfer” or otherwise conscript objecting physicians into euthanasia/assisted suicide service.


III.    Criminal legislation
III.1     By virtue of the subject matter of Bill C-14 (homicide and suicide), the federal government has jurisdiction in criminal law.

III.2     The use of criminal law is justified to prevent and to punish particularly egregious violations of fundamental freedoms that also present a serious threat to society, such as unlawful electronic surveillance, unlawful confinement and torture.

III.3     Coercion, intimidation or other forms of pressure intended to force citizens to become parties to homicide or suicide is both an egregious violation of fundamental freedoms and a serious threat to society that justifies the use of criminal law.  For this reason, the Project proposes an amendment to Bill C-14, set out in Appendix “A.”

III.4      The proposed amendment is an addition that does not otherwise change the text of  Bill C-14. Nor does it touch the eligibility criteria proposed by Carter, nor the criteria or procedural safeguards recommended by the Special Joint Committee or Provincial-Territorial Expert Advisory Group.  It simply establishes that, as a matter of law and national public policy, no one can be compelled to become a party to homicide or suicide, or punished or disadvantaged for refusing to do so.

Appendix “A” – Proposed Amendment

Conscientious refusal to kill deserves the protection of law. Bill C-14 doesn’t provide it.

News Release
For immediate release
Print | Audio

Protection of Conscience Project

In light of the assisted suicide/euthanasia bill introduced by the government of Canada (Bill C-14),1 it is necessary to emphatically reaffirm that conscientious refusal to kill people is a manifestation of essential humanity that deserves the protection of law.

Notwithstanding the assurances of Canada’s Minister of Health,2 Bill C-14 does not provide that protection. The government is deliberately ignoring the ongoing coercion of health care providers to compel participation in euthanasia, and Bill C-14 will allow coercion to continue.

The bill follows upon a report from a parliamentary Special Joint Committee formed to advise the government on a legislative response to the Supreme Court ruling in Carter v. Canada.3 Bill C-14 does not incorporate the Committee’s more radical recommendations. It does not, for example, make euthanasia and assisted suicide available as therapies for mental illness.4

However, it does indicate that the government intends to pursue this and other Committee recommendations.5 Two of them assert the authority of the state to command the use of deadly force: not merely to authorize it, but to command it.

The Special Joint Committee recommended that physicians unwilling to kill patients or help them commit suicide should be forced to find someone willing to do so. It also recommended that publicly funded facilities, like hospices and hospitals, should be forced to kill patients or help them commit suicide, even if groups operating the facilities object.6

The federal government cannot do this because the regulation of health professions and health care institutions is within provincial jurisdiction. Hence, the Committee urged the federal government to “work with the provinces” to implement this coercive regime.6 Translation: get willing hands in the provinces to do the dirty work of coercion – and take the heat for it.

Now, the federal government can prevent such coercion because it has exclusive jurisdiction in criminal law. It can enact a law to prevent powerful groups, professions, or state institutions from forcing people to be parties to homicide and suicide. It can prevent those in power from punishing health care providers who refuse to arrange for their patients to be killed or helped commit suicide.

The federal government can do this, but Bill C-14 does not do it. Instead, it makes possible the coercive regime recommended by the Special Joint Committee.

And this is deliberate, because the Prime Minister and Minister of Health know full well that coercion and intimidation to force participation in euthanasia and assisted suicide are already occurring in Canada, notably in Quebec7,8,9,10 and Ontario.11 ,Their bill “works with” willing hands in Ontario and Quebec by allowing coercion and intimidation to continue – and to spread.

It is true that the bill’s preamble states that the government will “respect the personal convictions of health care providers.”

But – aside from the fact that preambles have no legal effect12 – what is that worth?

After all, the Special Joint Committee claimed that respect for freedom of conscience is exemplified by their recommendation that, “at a minimum,” objecting physicians should be forced to find colleagues willing to kill their patients.6 Behind this Orwellian perversion lies the Committee’s more astonishing premise: that the state can legitimately order people to become parties to homicide and suicide, and punish them if they refuse.

That is outrageous, indefensible and dangerous. It is not a mere “limitation” of fundamental freedoms, but an egregious attack on them. It is a grave violation of human dignity that deserves only the utter contempt of a free people.

The Prime Minister and a great many people in positions of power and influence need to be reminded of this as we approach the deadline for the proclamation of Bill C-14: the anniversary of the Allied landings at Normandy.

Whatever else it might decide about euthanasia and assisted suicide, parliament should make it the law of the land that no one and no institution in Canada can be forced to be a party to homicide or suicide, and no one will be punished or disadvantaged for refusing to do so.”13

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Contact:
S.T. Murphy, Administrator
protection@consciencelaws.org


Notes
1. Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (Accessed 2016-04-20) (Hereinafter “Bill C-14”).

2. “’Under this bill, no health care provider will be required to provide medical assistance in dying,’” Health Minister Jane Philpott told reporters Thursday. Laucius, J. “Groups worry new assisted-dying legislation doesn’t protect physicians’ consciences.” Ottawa Citizen, 14 April, 2016 (Accessed 2016-04-14) Emphasis added.  The statement does not mean that health care providers cannot be forced to become parties to homicide or suicide.

3. Carter v. Canada (Attorney General), 2015 SCC 5 (Accessed 2015-06-27)

4. Medical Assistance in Dying: A Patient-Centred Approach. Report of the Special Joint Committee on Physician Assisted Dying (February, 2016) (Hereinafter “SJC Report”) p. 13-14; Recommendations 3,4, p. 45. (Accessed 2016-03-09).

5. Bill C-14, Preamble, final paragraph.

6. SJC Report, Recommendations 10-11, p. 36.

7. Supreme Court of Canada, 385591, Lee Carter, et al. v. Attorney General of Canada, et al. (British Columbia) (Civil) (By Leave): Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project) Oral Submission, [455:48/491:20].

8. Canadian Press, “Gaétan Barrette insists dying patients must get help to ease suffering.” CBC News, 2 September, 2016 (Accessed 2016-04-20).

9. Robert Y. “L’objection de conscience.” Collège des médecins du Québec, 10 November, 2015. (Accessed 2016-04-20).

10. The Canadian Press, “Justin Trudeau, Philippe Couillard hail era of co-operation after meeting in Quebec City: Prime Minister praises Quebec’s approach on controversial topic of medically-assisted deaths.” CBC News, 11 December, 2015 (Accessed 2016-04-15).

11. College of Physicians and Surgeons of Ontario, Interim Guidance on Physician Assisted Death (January, 2016) (Accessed 2016-04-15).

12. University of Alberta, Centre for Constitutional Studies, The Constitution: Preamble (Accessed 2016-04-15).

13. Submission of the Protection of Conscience Project to the Special Joint Committee on Physician Assisted Dying (31 January, 2016)