Redefining the Practice of Medicine

Euthanasia in Quebec

An Act Respecting End-of-Life Care (June, 2014)

Sean Murphy*

Part 1: Overview

The Medical Act

An Act Respecting End-of-Life Care, hereinafter "ARELC")1 is intended to legalize euthanasia by physicians in the province of Quebec.  It was introduced as Bill 52 by the Parti Quebecois government and debated in the Quebec National Assembly in 2013.  It failed to pass before an election was called and the legislature was dissolved.  While the Parti Quebecois was defeated and replaced by the Liberal Party of Quebec, in 2014 the Liberal party reintroduced the bill.  It passed on 5 June, 2014.  It does not actually come into effect until the end of 2015.2

The potential impact of ARELC on freedom of conscience in health care must be evaluated in the light of one of the routine amending provisions intended to bring other provincial statutes into line with the proposed legislation. ARELC makes the following changes to Section 31 of Quebec's Medical Act, which defines the practice of medicine.

Former Medical Act Section 313	New Medical Act Section 314
The practice of medicine consists in assessing and diagnosing any deficiency in health and in preventing and treating illness to maintain or restore the health of a person in interaction with his environment.	The practice of medicine consists in assessing and diagnosing any health deficiency in a person in interaction with their environment, in preventing and treating illness to maintain or restore health or to provide appropriate symptom relief.

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

(12) administering the drug or substance or allowing an end-of-life patient to obtain medical aid in dying under the Act respecting end-of-life care.5

"Medical aid in dying"

Definition

The original text of Bill 52 did not define medical aid in dying, a strategically ambiguous term  that everyone understood to mean euthanasia.  The government dispensed with the winks and nods and revised the text, so that ARELC now states that it consists of "the administration by a physician of medications or substances to an end-of-life patient, at the patient's request, in order to relieve their suffering by hastening death."6  

Eligibility

The statutory MAD guidelines for euthanasia restrict it to legally competent persons at least 18 years old who are insured under the provincial Health Insurance Act are "at the end of life," are suffering from serious and incurable illness, are in an "advanced state of irreversible decline in capability," and "experience constant and unbearable physical or psychological pain which cannot be relieved in a manner the patient deems tolerable"(Part 2). 

Interpretation

These criteria can be broadly interpreted, so that, without changing a word of the statute, euthanasia under MAD protocols need not be restricted to a period immediately preceding death, and that it could be made available to the legally incompetent, the uninsured, and the mentally ill.  In addition, a number of powerful and influential groups supporting ALERC recommend that access to euthanasia be expanded.  It is thus reasonable to believe that ARELC's criteria for euthanasia will be broadened by interpretation, by statutory amendments and by court rulings or decisions of quasi-judicial tribunals, so that, as time goes on, there will be more euthanasia, not less. (Part 3).

Euthanasia vs. assisted suicide

ARELC requires that a physician who determines that "medical aid in dying" (MAD) may be administered to a patient "must administer such aid personally and take care of and stay with the patient until death ensues."7 It is abundantly clear that the new law intends that Quebec physicians should, in defined circumstances, provide euthanasia: that is, kill their patients.  This is recognized by the Quebec medical establishment and other supporters of the law (Part 4).

ARELC indicates that "medical aid in dying" is an action by a physician; that would seem to preclude assisted suicide, which would involve a lethal act by a patient.  However, during committee hearings on Bill 52, law professor Jocelyn Downie pointed out that "administration" of a substance could be taken to include writing a prescription for a lethal drug and giving it to the patient to consume, which would, arguably, constitute assisted suicide.8   Whether or not that would be the case, Professor Downie suggested that the bill be clarified.

It is important to clearly allow for this as some patients would automiously [autonomously] choose this kind of medical aid over a lethal injection, and some physicians may also find it a kind of medical aid that they are more comfortable providing.9

Though Professor Downie's suggestion was not taken up, euthanasia and assisted suicide are both forbidden under Canadian criminal law, so there is an obvious conflict between Canadian criminal law and Quebec's ARELC.

Euthanasia Below the Radar (EBTR)

The MAD provisions are limited to legally competent patients.  They include statutory restrictions, procedural guidelines and reporting requirements, and have understandably been the focus of most public and professional attention.  However, ARELC also provides that substitute decision makers can order legally incompetent patients who are not dying to be starved and dehydrated to death.  This practice, identified here as Euthanasia Below the Radar (EBTR), is completely unrestricted and is not even reportable. (Part 2)

Constitutional law

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

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

Circumventing the criminal prohibition

Since neither ARELC nor MAD guidelines can abolish the criminal prohibition of euthanasia, physicians who kill patients in the circumstances contemplated by the new law would still be liable to prosecution. Thus, the provincial government plans to adopt the recommendation of the Select Committee on Dying with Dignity:

Although criminal law falls under the purview of the federal government, Québec is responsible for the administration of justice and application of criminal law. As such, the Attorney General of Québec decides whether to lay charges and prosecute. To ensure doctors have peace of mind when practicing their professions, the Attorney General of Québec should issue directives, in the form of "guidelines and measures", to the Director of Criminal and Penal Prosecutions so that physicians who provide medical aid in dying in accordance with the criteria provided by law cannot be prosecuted.10

The Select Committee pointed out that the province adopted such a policy to prevent the enforcement of the criminal law on abortion,11 and the Federation of General Practitioners of Quebec stressed their concern about this during legislative hearings.  Dr. Godin asked for "a clear directive from the Minister Justice" guaranteeing that "that there would be no criminal prosecution," which, he said was "essential. . .  if we want to suggest that doctors, especially family physicians, do this medical procedure."12

Then Minister of Health, Véronque Hivon, assured him that the Minister of Justice would issue the appropriate directive.13

Physicians seek immunity from prosecution when law disobeyed

Beyond the guarantee the doctors would not be criminally prosecuted for providing euthanasia under ARELC, the Federation of General Practitioners also sought immunity from prosecution for failing to conform to the MAD guidelines set out in the law.  The Federation objected not only to the fines proposed for physicians who fail to report euthanasia as required,14 but to the possibility of prosecution if they violate MAD guidelines when a patient is killed.  According to Dr. Godin, Quebec general practitioners are prepared to accept the guidance or discipline of the Collège des médecins if they violated the guidelines, but not the prospect of being charged for murder or manslaughter.

Pour nous, les autorités compétentes, dans ce cas-là, demeurent le Collège des médecins. C'est un acte médical. Si je ne le pose pas correctement selon les règles déontologiques, les règles de l'art, je veux dire, le Collège des médecins est là. Pour nous, c'est lui, l'autorité compétente, et ça ne devrait pas être transmis à d'autres autorités que celle-là.

For us, the competent authorities, in this case, remain the Collège des médecins. This is a medical procedure. If I do not act properly according to the rules of ethics, rules of art, I should say, the Collège des médecins is [the authority]. For us, it is the competent authority, and [an allegation] should not be passed to other authorities than this.15

The concerns were accepted, at least in part.  The government dropped Bill 52's provision for $1,000.00 to $10,000.00 fines for physicians who fail to report when they perform euthanasia.  Instead, ARELC states that anyone who discovers that a physician has failed to report euthanasia must notify the Collège des médecins "so that it can take appropriate measures."16  It also removed the requirement that the Commission on End-of-Life Care report a physician's failure to adhere to MAD guidelines to authorities other than the Collège des médecins and the institution concerned.17

However, it seems doubtful that prudent public policy would now authorize a professional class to kill, and also guarantee its members immunity from prosecution.  As a result, Quebec's Attorney General may be unwilling to provide the extent of immunity sought by physicians, and at least some physicians may be unwilling to provide euthanasia without it (Part 8).

Expectations of complicity

ARELC states that policies giving effect to the law will be determined by the Minister for Social Services and Youth Protection.18 It also envisages the development of MAD guidelines by professional regulators, and requires protocols be developed by institutional councils of physicians, dentists or pharmacists or institutional medical directors.19  Thus, the introduction of euthanasia will require the complicity of thousands of health care workers and administrators, who will be expected, by their actions, to formally accept and facilitate euthanasia as a form of health care under the rubric of "appropriate symptom relief." (See Appendix "B")

The expectation of this support was voiced by Dr. Louis Godin, President of the Federation of General Practitioners of Quebec at committee hearings in the fall of 2013.  Dr. Godin also emphasized how important this is for physicians.  Referring to the "burden" the law imposes on physicians ("un poids sur les médecins"), he stressed that physicians must be given the necessary resources: 

. . . qu'offrir des services en soin de vie, que ce soit des soins palliatifs, de la sédation palliative, que ce soit de l'aide médicale à mourir, ça ne peut pas se faire seul.  Le médecin ne peut pas se retrouver seul à faire ça. C'est un acte médical, mais le médecin doit pouvoir être entouré, et on doit pouvoir le supporter.

. . . offering life care services, whether palliative care, palliative sedation, whether medical help to die, it cannot be done alone.  The doctor cannot be left alone to do it. This is a medical procedure, but the doctor must be surrounded, and we must support it.20

While Dr. Godin was ostensibly referring to resource management issues, one might reasonably detect here a strong desire for moral approbation.  If this is correct, it is also reasonable to expect those participating in euthanasia to be highly sensitive to "judgementalism," likely to be perceived in continued public expression of opposition to euthanasia and in conscientious objection by colleagues and other professionals.

Probability of complicity

The committee hearings in the fall of 2013 demonstrated that large numbers of people involved in the delivery of health care in Quebec are likely to cooperate with the government in implementing ARELC.  While the Quebec Medical Association (Association médicale du Québec)21 and the Interprofessional Health Federation of Quebec  (Fédération interprofessionnelle de la santé du Québec)22 both expressed neutrality on the subject of euthanasia, the prospect that physicians would be allowed to kill patients in accordance with MAD guidelines was supported and even applauded by many health care professions and institutions that appeared before the legislative committee, including:

• the Collège des médecins (Collège des médecins du Québec)23

• the Federation of General Practitioners of Quebec (Fédération des médecins omnipraticiens du Québec)24

• the Federation of Quebec Medical Specialists (Fédération des médecins spécialistes du Québec)25

• the College of Pharmacists of Quebec (Ordre des pharmaciens du Québec)26

• the Pharmacists Association of Health Facilities of Quebec (Association des pharmaciens des établissements de santé du Québec)27

• the Quebec Order of Nurses (l'Ordre des infirmières et infirmiers du Québec)28

• the Quebec Association of Health and Social Services (Association québécoise d'établissements de santé et de services sociaux)29

• the Association of Councils of Physicians, Dentists and Pharmacists of Quebec (Association des conseils des médecins, dentistes et pharmaciens du Québec)30

Transcripts of the committee hearings suggest that official representatives of physicians, pharmacists and nurses seem to equate participation in the killing of patients as a mark of professional status and competence.  The Collège des médecins admits that ARELC authorizes euthanasia - "an active act with the intention of causing death"31 - but argues that the term "medical aid in dying" is more appropriate because the law requires that the lethal act be done by a physician, and that the MAD guidelines require "medical judgment of the medical conditions that should be part of a continuum of care."32

Similarly, the Federation of General Practitioners insists that the act of killing the patient must be "an act reserved for doctors."33 When asked by the Minister of Health to justify this position - why, for example, nurses should not be allowed to administer a lethal drug - Dr. Louis Godin said that "it is a gesture that still remains very, very important, which requires a great capacity for evaluation, which involves a lot on a professional level."  Thus, he said, "it is clear that it must be a medical procedure."34

The Quebec College of Pharmacists asked that the bill include reference to pharmacists "because his professional responsibility is engaged every time he dispenses drugs."35  College spokesman Diane Lamarre said that it is a pharmacist's responsibility to monitor drug therapy, which "implies that pharmacists should assess whether the dose is appropriate, if it is too high or if it is too low."36  She argued that is appropriate, given this "new reality," to entrust this responsibility to pharmacists, suggesting that it might even prevent patients from being involuntarily killed:

Le pharmacien est le dernier filet de sécurité, je vous dirais. . . Alors, je pense qu'il faut que le pharmacien réalise bien ces activités-lá. Il a la formation pour le faire, et ça fait partie de ses responsabilités...

The pharmacist is the last safety net, I would say . . .So I think we need the pharmacist to perform these activities. He has the training to do it, and it's part of his responsibilities . . .37

The absence of any reference to the participation of nurses in euthanasia surprised and offended the Order of Nurses:

L'infirmière, c'est le membre pivot de l'équipe interdisciplinaire. Les infirmières sont présentes sept jours par semaine, 24 heures par jour. De par leur relation privilégiée avec les personnes, elles apportent une contribution unique aux discussions avec les médecins et les autres membres de l'équipe interdisciplinaire. Or, nous sommes très étonnées de constater que, malgré cette réalité bien présente, le projet de loi élude complètement la contribution des infirmières, ne les mentionnant qu'en référence à l'exercice de leur profession quand elles sont en cabinet professionnel.

The nurse is the key member of the interdisciplinary team. Nurses are present seven days a week, 24 hours a day. By their special relationship with the people, they make a unique contribution to discussions with physicians and other members of the interdisciplinary team. However, we are very surprised to find that, despite this reality, the bill totally ignored the contribution of nurses, not mentioning them in reference to the exercise of their profession when they are in the consulting room.38

Nurse representative Mme. Lucie Tremblay told legislators, "[T]he doctor is important, but the contribution of the nurse is unique, because she is always there,"39 so that "it was like really unthinkable that we find nothing in the bill that reflects the really important contribution of the nurse."40

Nous . . . croyons que l'encadrement des interventions dans les établissements doit intégrer l'apport des infirmières. . . . nous croyons que les infirmières devraient être davantage impliquées. La représentation des infirmières, aussi, au niveau de la commission des soins de fin de vie est incontournable. Nous sommes présentes auprès de ces malades-là et nous croyons que les infirmières devraient avoir une place sur cette commission des soins de fin de vie.

We . . . believe that guidelines for  interventions in institutions should include the contribution of nurses. . . . . . we believe that nurses should be more involved. The representation of nurses, too, at the Commission on End of Life Care is essential. We are present with these patients and we believe that nurses should have a place on this End of Life Care board.41

The pharmacists did not receive additional recognition in ARELC, but a provision was added to the law requiring institutional councils of physicians, dentists and pharmacists to collaborate with the council of nurses in developing protocols for palliative care and euthanasia, and another amendment added a representative of the Order of Nurses to the Commission on End of Life Care, which will oversee the operation of ARELC.42

The Observatory for Aging and Society (l'Observatoire Vieillissement et Société) did not take a position on euthanasia,43 but other organizations closely involved in health care delivery supported ARELC:

• the Provincial Association of User Committees, representing 600 (about 80%) committees in health care facilities throughout the province,44

•  Quebec Association of Gerontology (Association Québécoise de Gérontologie)45

• College of Social Workers & Marriage & Family Therapists of Quebec (Ordre des travailleurs sociaux et des thérapeutes conjugaux et familiaux du Québec)46

• the Institute for Care Planning (l'Institut de planification des soins)47

• the Council for the Protection of Patients (Conseil pour la protection des malades)48 

Of particular note, notwithstanding criminal law to the contrary, Quebec's MAD law secured the support of the Quebec legal profession - the Quebec Bar (Barreau du Québec)49 and the Chamber of Notaries of Quebec (Chambre des notaires du Québec)50 - as well as the province's human rights establishment, represented by the Commission on Human Rights and Youth Rights (Commission des Droits de la Personne et des Droits de la Jeunesse)51 and the Quebec Ombudsman (Protecteur du citoyen).52

Resistance to complicity

Palliative care physicians were prominent in their opposition to euthanasia and assisted suicide and expressed their views through professional organizations.  These were joined in dissent by groups with broader membership:

• Physicians' Alliance for Total Refusal of Euthanasia (Collectif de médecins du refus médical de l'euthanasie)53

• Coalition of Physicians for Social Justice (Coalition des médecins pour la justice sociale)54

• Quebec Palliative Care Network (Réseau des soins palliatifs du Québec)55

• Quebec Society of Palliative Care Physicians (Société Québécoise des Médecins de Soins Palliatifs)56

• Christian Medical Dental Association57

Two of these organizations (Physicians' Alliance and the Quebec Society of Palliative Care Physicians) were formed in 2013, and some physicians are members and even executive members of more than one of the groups - a fact that then Minister of Health Véronique Hivon described suspiciously as "a little too normal." ("mais c'est normal un peu aussi").58

Be that as it may, the rejection of euthanasia by palliative care specialists was echoed by  representatives of hospices and palliative care organizations (Part 8).  Opponents of the law included:

• the Alliance of Quebec Hospices (l'Alliance des maisons de soins palliatifs)59

• Michel Sarrazin Home (La Maison Michel Sarrazin)60

• NOVA Montreal61.

Alone among this group, the Palliative Home Care Society of Greater Montreal adopted a neutral position on MAD, apparently because the Society does not include  physicians or assigned medical teams.62 Madam Hivon understood this to mean that the Society would respect the wishes of patients who wanted euthanasia; she found the Society's neutrality "refreshing."63

Physicians (and, presumably, some other health care workers) were also reported to be  members of other anti-euthanasia groups, like the Quebec Rally Against Euthanasia (Rassemblement québécois contre l'euthanasie),64 and Living with Dignity (Vivre dans la dignité).65

So marked was the evidence of opposition to euthanasia that doubts were raised about the possibility of implementing the law.  Since the law was passed as a result of assurances from the Quebec medical establishment that it could be implemented, a committee member who is now a minister of the Quebec government warned that they would be called to account if it is found that few physicians are willing to participate. (Part 4)

Enforcing complicity

Rights claims

Section 4 of ARELC states that eligible patients have a right to "end-of life-care," which includes euthanasia and palliative care.  Dr. Laurent Marcoux, President of the Quebec Medical Association, was keenly aware of the effect of granting a statutory right:

Ce mot-là est vraiment nouveau dans la dispensation des soins, on dit que les soins palliatifs deviennent un droit; ce n'est pas un privilège, ce n'est pas s'il y en a, c'est un droit. Quand on a un droit, on peut exiger qu'il soit exercé. C'est quelque chose de très puissant, le droit.

That word is really new in the provision of care, it is said that palliative care becomes a right, not a privilege, it is not [a privilege], it is a right. When you have a right, you may require that it be exercised. This is something very powerful, a right.66

ARELC attenuates the right by recognizing limits inherent in law, institutional structures, policies and "human, material and financial resources."67 The Quebec Ombudsman observed that realization of a "right" to end-of-life care was likely to be impacted by "organizational realities and budgetary constraints," making particular note of the existing shortage of palliative care beds.68  Similarly, the Quebec Division of the Canadian Cancer Society warned the legislative committee not to allow the qualification "to be used as an excuse" not to provide palliative care.69

During the committee hearings, Mme. Stéphanie Vallée asked, "Do we have what it takes? . . . Are we ready to Quebec to codify the right to palliative care?"70

The physicians from Quebec Rally Against Euthanasia who answered her said that good palliative care was available in the province, but that political will was required to ensure that it was accessible to all citizens.71  On the other hand, Dr. Serge Daneault of the Physicians' Alliance for Total Refusal of Euthanasia warned that the actual effect of a statutory right to both palliative care and euthanasia would tend to ensure the provision of euthanasia, not palliative care, since euthanasia is relatively cheap "while  palliative care involve personnel costs and infrastructure are far from negligible."72 

Be that as it may, from the perspective of those who object to euthanasia for reasons of conscience, ARELC's assertion of a "right" to the procedure is significant for two reasons.  First, as then Minister of Health Veronique Hivon observed during the legislative hearings in the fall of 2013, the law creates expectations among the population.73  In consequence, as noted by the Society of Palliative Care Physicians, patients will be more likely to demand that physicians provide euthanasia:

Ici, l'espace de concertation entre soignant et médecin est dominé par l'imposition au médecin d'un soin demandé par le malade. Pourquoi imposé? Parce que le médecin aura le devoir, si ce soin est un droit, de donner au malade l'accès à son droit. . .Dans un dialogue de partage de décision de soins, ni le médecin ni le malade n'imposent rien à l'autre. Nous partageons ensemble et nous choisissons ensemble un chemin. Dans le cas qui nous intéresse, je crois qu'il est possible - et notre conseil s'en inquiète - il est possible que le malade puisse dire : Monsieur, ceci est mon droit. Veuillez accomplir ce geste.

Here, the space for dialogue among the caregivers and physician is controlled by the imposition of the medical care demanded by the patient. Why imposed? Because the doctor has a duty, if care is a right, to give the patient access to his right. . . In a shared decisionmaking, neither the doctor nor the patient impose anything on each other. We share together and we choose a path. In the case before us, I believe it is possible - and our board is concerned - it is possible that the patient can say, sir, this is my right. Please do this.74

The second point follows from the first, and ehcoes Dr. Marcoux's comment to the effect that one who has a right may demand that others accede to it.  For example: the Quebec Association of Gerontology wants patients "to be informed and supported in their efforts . . . to go to medical help to die."75  It recommended that, "in the event of non-compliance with their rights," the right to use the statutory complaints process be acknowledged.76  Apparently as a result, a new section was added to the final text of the Act requiring that complaints about end-of-life care be given priority in the statutory complaints process and by the Collège des médecins.77 (See Appendix "B")

Beyond complaints, ARELC opens the door to coercive regulation and litigation, especially potentially ruinous human rights prosecutions.  Professor Margaret Somerville, who was testifying against Bill 52, told the legislative committee about the Declaration of Montreal,78 an internationally recognized statement approved by the World Health Organization.  Professor Somerville explained that the Declaration means that "for health care professionals to leave a person in serious pain is actually a breach of human rights."79  She was emphasizing the point that pain management is traditional and acceptable medical treatment and must always be provided, but that a doctor killing a patient has never been considered medical treatment.  She added, "and I don't think that it should be regarded as medical treatment."80

However, ARELC has redefined medical practice to allow doctors to kill patients in accordance with MAD guidelines as a form of "symptom relief," and the Declaration of Montreal is silent on the subject of euthanasia and assisted suicide.  Hence, the Declaration can be cited by euthanasia proponents as evidence that, in establishing a right to both palliative care and euthanasia, ARELC is entirely consistent with the Declaration.  Indeed: they may argue that establishing a right to euthanasia is actually required by the Declaration, inasmuch as it states that failure to establish "laws, policies and systems" to ensure access to "fully adequate pain management" is not only unethical, but "a breach of the human rights of people harmed as a result."81

This is precisely the approach taken by Quebec's Commission on Human Rights and Youth Rights, though it cites the Charter of Rights and Freedoms of Quebec rather than the Declaration of Montreal.  Commission representative Jacques Fremont told the legislative committee that "the legal framework of medical aid in dying as a right  is needed to implement the rights and freedoms under the Charter."

"In other words," he said, "it is the absence of legislation [i.e., permitting euthanasia: Administrator] that could have the effect of violating the fundamental rights of Quebecers."82

Thus, the statutory declaration of a "right" is the most powerful weapon in the legal arsenal likely to be used to enforce compliance with ARELC and to attack freedom of conscience among those who refuse to facilitate the procedure.  At the very least, it exposes them to the rhetorically deadly accusation that they are denying patients their rights.

Rather than deny either patients' access to euthanasia or physicians' freedom of conscience, several mechanisms have been proposed to accommodate both.  Delegation is not permitted by law, and transfer of patients will not normally be feasible.  However, workable alternatives include the advance identification of willing physicians in each region, the use of electronic communication services to permit remote consultation and the establishment of mobile "flying squads" of euthanatists to provide services not otherwise available in some parts of the province. (Part 5)

Discriminatory screening

Euthanasia proponents deny that they intend to force physicians to personally kill patients, but the exercise of freedom of conscience by objecting physicians who refuse to kill patients can lead to unjust discrimination against them.  Discriminatory screening of physicians unwilling to kill patients can be effected by denying them employment in their specialties and denying them hospital privileges.  By such strategies one can truthfully affirm that physicians are not actually being forced to kill, although those unwilling to do so may be forced to change specialties, leave the profession or emigrate. (Part 5)

Forced participation

It appears that, even where euthanasia or assisted suicide is legal, the majority of physicians do not actually provide the services.  Often for purely pragmatic reasons, euthanasia supporters do not usually insist that an unwilling physician should be compelled to personally kill a patient. 

However, objecting physicians not only refuse to kill patients, but also often refuse to do anything that they believe makes them morally responsible for the killing.  This includes actions that indirectly support or facilitate it.  Hence, it is likely that most of the attacks on freedom of conscience resulting from ARELC will be precipitated, not by a refusal to kill directly, but by this kind of refusal to participate indirectly in killing.  Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is the response expected of physicians by professional bodies and regulators in order to avoid physician complicity in such procedures. (Part 6)

Refusing to kill

Generally

Physicians may refuse to provide euthanasia if the patient is legally ineligible, and for other reasons, including conscientious objection.  ARELC requires physicians who refuse to provide euthanasia for any reason other than non-eligibility to notify a designated administrator, who then becomes responsible for finding a MAD physician.  The idea is to have the institution or health care system completely relieve the physician of responsibility for facilitating the procedure. (Part 7)

Conscientious objection

The protection of conscience provision in ARELC distinguishes physicians from other health professionals, providing less protection for physicians than for others.  Other health care professionals may refuse to "take part" (participate) in killing a patient for reasons of conscience.  Physicians may refuse only  "to administer" euthanasia - a very specific action -  which seems to suggest that they are expected to participate in other ways. (Part 7)

Criminal law

Some Quebec physicians may be unwilling to provide euthanasia while the criminal law stands, even if they do not object to the procedure. Quebec's Attorney General may be unwilling to provide the extraordinary kind of immunity sought by physicians, and some physicians may be unwilling to provide euthanasia without it.  As long as euthanasia remains a criminal offence, physicians or other entities responsible for issuing or administering MAD guidelines may respond to requests for euthanasia with total refusal to co-operate.  Even a partial  and scattered response of this kind would likely be administratively troublesome. (Part 7)

Complaints

Patients may lodge complaints against physicians who refuse to provide or facilitate euthanasia with institutions and the regulatory authority, regardless of the reasons for refusal.(Part 7)

Palliative care hospices

Palliative care hospices may permit euthanasia under the MAD protocol on their premises, but they do not have to do so.  Patients must be advised of their policy before admission.  The government included another section of ARELC to provide the same exemption for La Michel Sarrazin, a private hospital.  The exemptions were provided for purely pragmatic and political reasons.  The exemptions have been challenged by organizations that want hospices forced to kill patients who ask for MAD, or at least to allow physicians to come in to provide the service.  Hospice representatives rejected the first demand and gave mixed responses to the second.  A prominent hospice spokesman predicted that the pressures would increase after the passage of ARELC, and that hospices refusing to provide euthanasia would operate in an increasingly hostile climate. (Part 8)

Codes of ethics

Refusing to participate, even indirectly, in conduct believed to involve serious ethical violations or wrongdoing is the response expected of physicians by professional bodies and regulators.  It is not clear that Quebec legislators or professional regulators understand this.  A principal contributor to this lack of awareness - if not actually the source of it - is the Code of Ethics of the Collège des médecins, because it requires that physicians who are unwilling to provide a service for reasons of conscience help the patient obtain the service elsewhere.

As a general rule, it fundamentally unjust and offensive to human dignity to require people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence.  It was a serious error to include this a requirement in code of ethics for Quebec physicians and pharmacists. The error became intuitively obvious to the Collège des médecins and College of Pharmacists when the subject shifted from facilitating access to birth control to facilitating the killing of patients.  

A policy of mandatory referral of the kind found in the Code of Ethics of the Collège des médecins  is not only erroneous, but dangerous.  It establishes the principle that people can be compelled to do what they believe to be wrong - even gravely wrong - and punish them if they refuse.  It purports to entrench  a 'duty to do what is wrong' in medical practice, including a duty to kill or facilitate the killing of patients. To hold that the state or a profession can compel someone to commit or even to facilitate what he sees as murder is extraordinary. (Part 9)

Federal options

Unlike the original Bill 52, ARELC explicitly authorizes physicians to kill patients deemed eligible for MAD by the Act.  Thus, it is now clear that the federal government could go to court to have the statute declared unconstitutional.  However, should the federal government mount a constitutional challenge to ARELC, the province is well-positioned to argue that the medical profession has decided (through its official representatives) that euthanasia is a legitimate form of medical intervention, that the Quebec legal profession supports this view, and that the province's human rights commission insists that refusing to provide euthanasia is a violation of human rights.  In effect, this would pit the federal government not just against the Quebec government, but against highly influential opinion makers and power blocks in the province.

For this reason, political considerations are likely to be much in play as the federal government considers its options in responding to the constitutional challenge to its jurisdiction in criminal law.  While worries about "fanning the fires of separatism" seem misplaced following the decisive defeat of the separatist Parti Quebecois, it has been suggested that Quebec has undergone a gradual "de-Canadianization" so that it is, in reality, a politically, legally and socially distinct entity: that it has, in a sense, "pretty much already separated" from the rest of Canada.83 

Hence, even if separatism is now a dead issue, challenging ARELC might well antagonize Quebeckers who would resent federal intervention as a violation of their right to self-determination.  The federal Conservative Party, its grip on power maintained by a 17 seat majority in the House of Commons,84 hopes to gain seats in Quebec in the next federal election,85 which must be held by 19 October, 2015.  While it is possible that Prime Minister Stephen Harper might be willing to jeopardize his party's chances in the province by going to court, there are two reasons to think that the federal government will take no action prior to the next federal election. 

The first is that ARELC will not actually come into effect until the end of 2015;86 no lives will be at risk before a federal election is held.

The second is that the Supreme Court of Canada will hear the case of Carter v. Canada in October, 2014,87 and will rule on the current criminal prohibition of physician-assisted suicide.  The government might decide that it is prudent (and consistent with its political interests in Quebec) to wait for the judgement of the Supreme Court in Carter before challenging ARELC, since euthanasia will not be available in Quebec before then.  If the Supreme Court upholds the criminal prohibition of assisted suicide, the ruling is likely to be instructive in framing an argument against ARELC.  On the other hand, if the Supreme Court strikes down the prohibition, the government may conveniently avoid responsibility for taking a position on a contentious issue.

Should the provincial government refuse to prosecute Quebec physicians who kill patients in accordance with An Act Respecting End-of-Life Care, the federal government could, in theory, appoint and pay lawyers to act as prosecutors.  The preceding considerations make this highly unlikely prior to a Supreme Court of Canada decision in Carter and the 2015 federal election.  More important, even if the federal government decided to hire prosecutors, it would face a significant practical problem. Federal prosecutors would be unable to act without the cooperation and assistance of the police, who investigate allegations and provide prosecutors with the evidence needed to support charges. Quebec police forces are under the jurisdiction of the provincial and municipal governments. While they are technically autonomous in their decisions about what to investigate, it is doubtful that they would be willing to go against the public policy of the province on an issue as contentious as euthanasia.

Long term prospects

Given the almost absolute control of criminal prosecution exercised by the provincial government, it seems unlikely that Quebec physicians who provide euthanasia under MAD guidelines will be prosecuted even if the prohibition of assisted suicide and euthanasia is maintained by the Supreme Court of Canada, and even if ARELC is ultimately struck down as unconstitutional.  Note that the province refused to enforce Canada's criminal law on abortion for 12 years, despite changes in the governing party, so a policy of refusing to prosecute physicians providing euthanasia could have similar staying power.  Finally, the continued de facto decriminalization of euthanasia in Quebec would probably generate considerable pressure in other provinces to follow suit.

Quebec's strategy in brief

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

a) Compliant medical regulators, professionals and health care authorities who have indicated that they will conform to ARELC, redefine medical practice to include euthanasia and establish it as a legitimate form of health care;

b) Use of existing state health care delivery organizations, institutions and state agencies to enforce compliance with ARELC by health care workers;

c) Reliance upon the legal profession, the human rights commission and provincial ombudsman to establish euthanasia as a human right;

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

Consequences for freedom of conscience

That official representatives of the legal and medical establishments of Quebec have formally declared their support for the view that physicians may kill their patients in order to relieve their symptoms is profoundly significant. Having formally approved of euthanasia, these establishments, including all of those who collaborate in drawing up MAD guidelines and protocols, will have a personal stake in defending the decision and proposing it as an ethical norm.

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

Considering this in light of the government's strategy, those who refuse to provide or facilitate euthanasia for reasons of conscience will likely find themselves in increasingly complicated and contentious working environments. Their continued refusal to acquiesce in what they believe to be gravely wrong and their insistence that euthanasia is incompatible with the ethical practice of medicine is likely to become increasingly offensive to the powers-that-be and to colleagues who support and provide euthanasia.

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

---

Notes:

Note:  "T#" is the prefix identifying a numbered block of translation of largely French language transcripts of hearings into Bill 52 in the fall of 2013.

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

2.  Séguin, Rhéal,  Quebec first province to adopt right-to-die legislation,  The Globe and Mail, 5 June, 2014.  (Accessed 2014-06-22)

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

4.  ARELC, Section 69.

5.  ARELC, Section 69.

6.  ARELC, Section 3(6).

7.  ARELC, Section 30.

8.  Consultations & hearings on Quebec Bill 52 (hereinafter "Consultations"), Wednesday, 9 October 2013 - Vol. 43 N° 45: Professor Joceyln Downie, T#019

9.  Consultations, Wednesday, 9 October 2013 - Vol. 43 N° 45: Professor Joceyln Downie, T#020

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

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

12.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#015

13.   Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#021)

14.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#014

15.   Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin) T#094

16.  ARELC, Section 46.

17.  ARELC, Section 47.

18.  ARELC, Section 19.

19.  ARELC, Sections 33, 35.

20.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#012

21.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Quebec Medical Association (Dr. Laurent Marcoux, Dr. Claude Roy, Mr. Norman Laberge)

22.  Consultations, Thursday, 26 September 2013 - Vol. 43 no. 39: Interprofessional Health Federation of Quebec  (Régine Laurent, Julie Martin, Michàle Boisclair, Brigitte Doyon)

23.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34:  Collège des médecins (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand)

24.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin)

25.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of Quebec Medical Specialists (Dr. Gaétan Barrette, Dr. Diane Francoeur, Nicole Pelletier) 

26.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert)

27.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Pharmacists Association of Health Facilities of Quebec  (François Paradis, Linda Vaillant)

28.  Consultations, Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon)

29.  Consultations, Wednesday, 18 September 2013 - Vol. 43 no. 35: Quebec Association of Health and Social Services (Michel Gervais, Diane Lavallée)

30.  Consultations, Thursday, 19 September 2013 - Vol. 43 no. 36:  Association of Councils of Physicians, Dentists and Pharmacists of Quebec (Dr. Martin Arata, Annick Lavoie, Annie Léger)

31.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34:  Collège des médecins (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#121

32.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34:  Collège des médecins (Dr. Charles Bernard, Dr. Yves Robert, Dr. Michelle Marchand), T#119

33.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#084

34.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr. Louis Godin, Dr. Marc-André Asselin), T#086

35.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert), T#012

36.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert), T#103 

37.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: College of Pharmacists of Quebec (Dianne Lamarre, Manon Lambert), T#104

38.  Consultations, Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon), T#021

39.  Consultations, Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon), T#106

40.  Consultations, Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon), T#110

41.  Consultations, Tuesday, 8 October 2013 - Vol. 43 no. 44: Quebec Order of Nurses (Lucie Tremblay, Claudia Gallant, Suzanne Durand, Sylvie Truchon), T#025

42.  ARELC, Sections 33, 39(1)b

43.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40: Observatory for Aging and Society (André Ledoux, Gloria Jeliu, Denise Destrempes, Claude Tessier)

44.  Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38: Provincial Association of User Committees (Claude Ménard, Pierre Blain)

45.  Consultations, Thursday, 3 October 2013 - Vol. 43 no. 42: Quebec Association of Gerontology (Catherine Geoffroy, Nathalie Adams)

46.  Consultations, Wednesday, 18 September 2013 - Vol. 43 no. 35: College of Social Workers & Marriage & Family Therapists of Quebec (Claude Leblond, Marielle Pauzé)

47.  Consultations, Tuesday, 8 October 2013 - Vol. 43 No. 44: Institute for Care Planning (Danielle Chalifoux, Denise Boulet, Louise Boyd)

48.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40: Council for the Protection of Patients (Lucie Wiseman, Suzanne Fitzback, Pierre Hébert) (Accessed 2014-08-10)

49.  Consultations, Thursday, 19 September 2013 - Vol. 43 no. 36: Quebec Bar (Johanne Brodeur, Marc Sauvé, Michel Doyon)

50. Consultations, Tuesday 24 September 2013 - Vol. 43 no. 37: Chamber of Notaries of Quebec (Jean Lambert)

51.  Consultations, Friday, 4 October 2013 - Vol. 43 no. 43: Commission on Human Rights and Youth Rights (Jacques Fremont,  Renée Dupuis, Daniel Carpentier, Marie Carpentier)

52.  Consultations, Tuesday 24, Tuesday 24 September 2013 - Vol. 43 no. 37: Quebec Ombudsman (Raymonde Saint-Germain, Marc André Dowd, Michel Clavet)

53.  Consultations,Tuesday 24 September 2013 - Vol. 43 no. 37: Physicians' Alliance for Total Refusal of Euthanasia (Dr. Catherine Ferrier, Dr Serge Daneault, Dr François Primeau)

54.  Consultations, Tuesday 24 September 2013 - Vol. 43 no. 37: Coalition of Physicians for Social Justice ( Dr. Paul Saba, Hélène Beaudin, Dominique Talarico)

55.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40: Quebec Palliative Care Network (Alberte Déry, Dr.Christiane Martel, Danielle Blondeau, Pierre Deschamps, Jessy Savaria, Yvan Lessard)

56.  Consultations, Wednesday, 2 October 2013 - Vol. 43 no. 41: Quebec Society of Palliative Care Physicians (Dr. Patrick Vinay, Dr. Michelle Dallaire)

57.  Christian Medical Dental Association, The Christian Medical and Dental Society of Canada Response to Quebec's Bill 52 - An Act respecting end of life care.  Larry Worthen, Executive Director, September 12, 2013 (The Society was not allowed to appear before the legislative committee.) (Accessed 2014-08-10)

58.  Consultations, Wednesday, 2 October 2013 - Vol. 43 no. 41: Quebec Society of Palliative Care Physicians (Dr. Patrick Vinay, Dr. Michelle Dallaire) T#031

59.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40: Alliance of Quebec Hospices (Lucie Wiseman, Suzanne Fitzback, Pierre Hébert)

60.  Consultations, 1 October 2013 - Vol. 43 no. 40: Michel Sarrazin Home (Dr. Michel L'Heureux, Dr. M. Louis-André Richard)

61.  Consultations, Wednesday, 2 October 2013 - Vol. 43 no. 4: NOVA Montreal (Dr. Michael Laplante, Marie-Claude Mainville)

62.  Consultations, Thursday, 10 October 2013 - Vol. 43 No. 46: Palliative Home Care Society of Greater Montreal (Elsie Monereau, Bérard Riverin) T#019

63.  Consultations, Thursday, 10 October 2013 - Vol. 43 No. 46: Palliative Home Care Society of Greater Montreal (Elsie Monereau, Bérard Riverin) T#112

64.  Consultations, Tuesday 24 September 2013 - Vol. 43 no. 37: Quebec Rally Against Euthanasia (Dr. Claude Morin, Dr. Marc Bergeron, Daniel Arsenault, Clément Vermette)

65.  Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38: Living with Dignity(Nicolas Steenhout, Dr. Marc Beauchamp, Michel Racicot)

66.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Quebec Medical Association (Dr. Laurent Marcoux, Dr. Claude Roy, Mr. Norman Laberge),T#048

67.  ARELC, Section 4.

68.  Consultations, Tuesday 24, Tuesday 24 September 2013 - Vol. 43 no. 37: Quebec Ombudsman (Raymonde Saint-Germain, Marc André Dowd, Michel Clavet), T#018

69.  Consultations, Tuesday, 1 October 2013 - Vol. 43 no. 40:  Canadian Cancer Society (Suzanne Dubois, Mélanie Champagne, Marie-Anne Laramee),T#013

70.  Consultations, Tuesday 24 September 2013 - Vol. 43 no. 37: Quebec Rally Against Euthanasia (Dr. Claude Morin, Dr. Marc Bergeron, Daniel Arsenault, Clément Vermette) T#109

71.  Consultations, Tuesday 24 September 2013 - Vol. 43 no. 37: Quebec Rally Against Euthanasia (Dr. Claude Morin, Dr. Marc Bergeron, Daniel Arsenault, Clément Vermette) T#112,T#113, T#115, T#116, T#118, T#120, T#129

72.  Consultations,Tuesday 24 September 2013 - Vol. 43 no. 37: Physicians' Alliance for Total Refusal of Euthanasia (Dr. Catherine Ferrier, Dr Serge Daneault, Dr François Primeau), T#014

73.  Consultations, Tuesday, 17 September 2013 - Vol. 43 no. 34: Quebec Medical Association (Dr. Laurent Marcoux, Dr. Claude Roy, Mr. Norman Laberge),T#046

74.  Consultations, Wednesday, 2 October 2013 - Vol. 43 no. 41: Quebec Society of Palliative Care Physicians (Dr. Patrick Vinay, Dr. Michelle Dallaire), T#010

75.  Consultations, Thursday, 3 October 2013 - Vol. 43 no. 42: Quebec Association of Gerontology (Catherine Geoffroy, Nathalie Adams), T#017

76.  Consultations, Thursday, 3 October 2013 - Vol. 43 no. 42: Quebec Association of Gerontology (Catherine Geoffroy, Nathalie Adams), T#020

77.  ARELC, Section 48.

78.  The International Association For The Study Of Pain. Declaration of Montréal: declaration that access to pain management is a fundamental human right.  (Accessed 2014-06-20)

79.  Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45: Professor Margaret Somerville, T#012

80.  Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45: Professor Margaret Somerville, T#013

81.  The International Association For The Study Of Pain. Declaration of Montréal: declaration that access to pain management is a fundamental human right.  (Accessed 2014-06-20)

82.  Consultations, Friday, 4 October 2013 - Vol. 43 no. 43: Commission on Human Rights and Youth Rights (Jacques Fremont,  Renée Dupuis, Daniel Carpentier, Marie Carpentier)T#009

83.  Chittley, Gordon, "'Gradual de-Canadianization' means Quebec has pretty much already separated."  CTV News, 6 March, 2014 (Accessed 2014-06-22)

84.  Parliament of Canada: Party Standings.   (Accessed 2014-06-22)

85.  Leblanc, Daniel, "Conservatives plan Quebec blitz to seize seats from NDP in 2015."  The Globe and Mail, 21 January, 2014.  (Accessed 2014-06-22)

86.  Séguin, Rhéal,  Quebec first province to adopt right-to-die legislation,  The Globe and Mail, 5 June, 2014.  (Accessed 2014-06-22)

87.  Carter v. Canada (Attorney General), 2013 BCCA 435 (Accessed 2014-06-22)