Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude

Legal Commentary

Protection of Conscience Project

Redefining the Practice of Medicine

Euthanasia in Quebec

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

Sean Murphy*

It is important identify problems that the Act poses for those who object to euthanasia for reasons of conscience, and to consider how objecting health care workers might avoid or respond to coercion by the government and the state medical and legal establishments. The goal here is to ensure that conscientious objectors to euthanasia will be able to continue to work in health care without becoming complicit in what they consider to be wrongdoing.

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.

It would be preferable to end the involvement of the objecting physician with refusal, accompanied by a suggestion that the patient will have to look for assistance from other sources. This might be achieved if objecting physicians were to notify both executive directors and patients in advance that they will not provide or facilitate euthanasia.

A more sensitive problem attends the requirement that an objecting physician forward a euthanasia request form to the designated administrator, since that is more clearly connected to the ultimate killing of a patient. Since the requirement to forward the request applies only if it has been given to the physician, this might be avoided if the objecting physician made his position clear in advance, and/or refused to accept such a request. Such complications could avoided if administrators were to adopt a policy to the effect that a health care professional who witnesses and countersigns a euthanasia request to arrange for MAD services is responsible for arranging them.

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.

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, which exceeds what was recommended by the Select Committee on Dying with Dignity, and some physicians may be unwilling to provide euthanasia without it.

Finally, 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 precisely as they would respond to requests to become involved in first degree murder: with total refusal to co-operate. Even a partial and scattered response of this kind would likely be administratively troublesome.

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.

When physicians refuse

From the limited perspective of protecting freedom of conscience, it is important identify problems that the Act poses for those who object to euthanasia for reasons of conscience, and to consider how objecting health care workers might avoid or respond to coercion by the government and the state medical and legal establishments.

The goal here is to ensure that conscientious objectors to euthanasia will be able to continue to work in health care without becoming complicit in what they consider to be wrongdoing. While this reflects support for freedom of conscience, not euthanasia, everyone should be interested in preventing physicians from being denied privileges, dismissed or forced to resign, which would hardly improve the delivery of health care in Quebec.

Refusing to kill generally

Refusal based on statutory eligibility (Section 30)

A physician may refuse to provide euthanasia based on his assessment of a patient's statutory eligibility. If, for example, the physician finds that the patient is under 18, or not a Quebec resident, or not suffering from an incurable illness, or not acting freely, the physician may not provide euthanasia, and must inform the patient of the reasons for his decision.1 Nothing else is required of the physician, but, as will be seen presently, the physician's refusal is not necessarily the end of the story, though that is not apparent from ARELC.

Refusal for other reasons (Section 31)

Section 31 is a general provision that applies to anyone who refuses to provide euthanasia for reasons other than the patient not fitting the criteria for MAD service, whether or not the refusal results from conscientious objection.

31. A physician practising in a centre operated by an institution who refuses a request for medical aid in dying for a reason not based on section 29 must, as soon as possible, notify the executive director of the institution or any other person designated by the executive director and forward the request form given to the physician, if that is the case, to the executive director or designated person. The executive director of the institution or designated person must then take the necessary steps to find, as soon as possible, another physician willing to deal with the request in accordance with section 29 (emphasis added).

The remainder of the section imposes essentially the same requirement on physicians not practising in centres operated by an institution; they are to notify executive directors of a local authority or of an institution operating a local community service centre, as the case may be. As noted in the section, executive directors can appoint someone to receive all such requests.

Generally

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

they lack the skill needed to provide euthanasia;
the drugs available are not suitable for the procedure;
the institution lacks the privacy required for it;
institutional rules concerning it are burdensome or otherwise unreasonable.

If a patient refuses to discuss the issue with family members, physicians may be unwilling to risk the consequences of killing the patient without the family's knowledge. Similarly, physicians may decline to be involved when disputes arise within families concerning euthanasia.

In such cases, the requirement under Section 31 to notify the director of professional services and forward the MAD request should not be problematic. Since these physicians do not object to euthanasia and would be willing to provide it in different circumstances, there is no reason for them to object to facilitating it.

Conscientious objection

Section 31 also applies to a physician who refuses to provide euthanasia for reasons of conscience. Consistent with the discussion in Part 8, the idea behind the section is to have the institution or health care system take over and completely relieve the physician of responsibility for facilitating the procedure.2 Holly Fernandez Lynch recommends this as "an institutional compromise,"3 though, as Michel Racicot of Living with Dignity observed, it denies freedom of conscience to the executive director or person designated to find a replacement physician.4

It is conceivable that an objecting physician might refuse to notify the executive director, inasmuch as that would set in motion a search for a MAD physician and ultimately lead to the killing of the patient. For this reason, it would be preferable to end the involvement of the objecting physician with refusal, accompanied by a suggestion that the patient will have to look for assistance from other sources. This issue could also be addressed if objecting physicians were to notify both executive directors and patients in advance that they will not provide or facilitate euthanasia. By doing so they would, arguably, fulfil the obligation imposed on the physician by ARELC, and it would enable executive directors to take whatever steps they deemed necessary to provide MAD service, while avoiding confrontations involving objecting staff and patients or family members.

A similar but more sensitive problem attends Section 31's provision (in italics above) that an objecting physician forward a euthanasia request form to the executive director. Objecting physicians who are willing to notify an executive director that they have refused or will refuse euthanasia may not be willing to transmit a request for euthanasia, since that is more clearly connected to the ultimate killing of a patient. However, the requirement to forward the request applies only if it has been given to the physician (ref. "if that is the case"). This would presumably not occur if the attending physician made clear in advance that he would have nothing to do with euthanasia; it may also be possible for an objecting physician to refuse to accept a request by a health care professional who has witnessed and countersigned it.

Such complications could avoided if administrators were to adopt a policy to the effect that a health care professional who witnesses and countersigns a euthanasia request to arrange for MAD services is responsible for arranging them. Presumably a health care professional who witnesses and countersigns a euthanasia request would have no objection to assuming that responsibility.

Refusing to kill for reasons of conscience

The original wording of the protection of conscience provision in Bill 52 did not actually recognize or authorize conscientious objection, but stated only that the law did not limit what had already been provided for in the codes of ethics of health care professionals. If there was no provision in a code of ethics to protect freedom of conscience, the original text of the law would not have provided protection.5 During the legislative committee hearings, then Minister of Health Véronique Hivon explained that the government could not provide protection in the bill that a profession had not included in its own code of ethics.6

However, the Quebec Association of Clinical Ethicists recommended that the concept of conscientious objection by other health care professionals be incorporated into the bill,7a recommendation also made by committee member Stéphanie Vallée.

Just as it is super important to respect individual freedom of the patient, I think we must also ensure respect for professional individual freedom, those who will be called upon to intervene. Because it is apparent in the debate, there are professionals working in care at the end of life, who, for many personal reasons, are not comfortable with the concept of medically assisted dying. Sometimes it may be for reasons to do strictly with skill, that is to say it is not a treatment they know administer or is something with which they are uncomfortable.8

In fact, referring to her personal experience with palliative care homes in her riding, Ms. Vallée wanted freedom of conscience recognized for boards of directors that operate homes for "the end-of-life population."9

Finally, the Quebec Assembly of Catholic Bishops, which opposed the passage of the law, insisted that if it were passed, the "possibility of objection should be clearly extended to all the nursing and administrative staff of health care facilities" to ensure that they "are not subjected to any pressure and are not discriminated against."10

Some of these recommendations seem to have had some effect, as the revised provision in ARELC now acknowledges freedom of conscience (though not by name) and the recognition extends to all health professionals.

50. A physician may refuse to administer medical aid in dying because of personal convictions, and a health professional may refuse to take part in administering it for the same reason. In such a case, the physician or health professional must nevertheless ensure that continuity of care is provided to the patient, in accordance with their code of ethics and the patient's wishes. In addition, the physician must comply with the procedure established in section 31.

The Order of Nurses said that it did not consider MAD to be a form of "care," but "a procedure that terminates life."11 Unfortunately, this position is likely to be attacked by activist insistence that "continuity of care" includes facilitating euthanasia.

Note that the section 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, which includes a broad range of conduct. Physicians, on the other hand, may refuse only "to administer" euthanasia - a very specific action - which seems to suggest that they are expected to participate in other ways. This may well be a result of the Collège des médecins Code of Ethics, which will be discussed in detail in Part 9.

Refusals based on criminal law

Up to this point, discussion has been limited to what might be considered predictable refusals of applications for euthanasia under ARELC. However, refusals may also be based on the continuing prohibition of euthanasia under Canadian criminal law. Moral or ethical objections might also be involved, but need not be. Indeed, physicians who have no moral objections to euthanasia might be unwilling to participate in it so long as it remains a crime. Some of these might stand by the principle of the rule of law, but others may have much more practical concerns, beginning with the extent of the immunity from prosecution promised by the Quebec government.

The question of immunity from prosecution

The government promise of immunity from criminal prosecution was based on the report of the Select Committee on Dying with Dignity. The Committee recommended that the Attorney General instruct the Director of Criminal and Penal Prosecutions "that physicians who provide medical aid in dying in accordance with the criteria provided by law cannot be prosecuted" (emphasis added).12 Minister of Health Véronque Hivon promised physicians who appeared before the legislative committee that this would be done.13

Note that the guarantee of immunity recommended by the Select Committee and (apparently) promised by the government is restricted to cases in which physicians have complied with the MAD guidelines in ARELC. That is: the government is willing to promise that physicians who comply with ARELC will not be charged with murder or manslaughter.

However, Quebec physicians want more than this. The Federation of General Practitioners wants a guarantee of immunity from prosecution even if a physician who kills a patient does not comply with ARELC. The position of the Federation is that a physician who kills a patient in violation of MAD guidelines may face disciplinary action by the Collège des médecins, but must not face criminal prosecution. In this, the Federation is supported by the Quebec Association of Health Facilities and Social Services.14

It is by no means certain that the Attorney General of Quebec will go this far, because the Federation's expectation of immunity is really quite extraordinary, particularly within the context of killing people. Killing people is sometimes legally allowed; that is why the Criminal Code distinguishes between homicide that is culpable (illegal) and non-culpable (legal). Nonetheless, those who are authorized to kill people in some circumstances - the police, for example - are not guaranteed immunity from criminal prosecution if they fail to adhere to the restrictions the law imposes on the use of deadly force. On the contrary: one can imagine the public reaction if the president of a Quebec police union were to ask the Attorney General to promise that policemen who kill people in the course of their duties will not be criminally charged, even if they fail to comply with the law in so doing.

From this perspective, the nonchalance with which the Federation's request was received by the legislative committee was remarkable. How it will be received by Quebec's Attorney General when it comes to instructing the Director of Criminal and Penal Prosecutions is an open question. There is a precedent for acceding to the request, to be sure; state executioners were immune from prosecution for killing prisoners sentenced to death. But that exception ceased to exist with abolition of capital punishment, and 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.

Civil jeopardy

Even if Quebec physicians are satisfied with the criminal immunity offered by the government, they may decline to provide euthanasia so for fear of other legal consequences. The commission of a criminal offence - especially murder or manslaughter - provides grounds for civil action by aggrieved parties. The Attorney General may refuse to prosecute, but cannot prevent private civil actions by distressed family members who decide to sue physicians or institutions who have - according to criminal law - murdered a relative. No doubt the legal arguments in such a case would be extensive and interesting, but it would not be surprising if many physicians would prefer to avoid situations in which such arguments become necesssary.

Total refusal

As long as euthanasia remains a criminal offence, physicians concerned about the rule of law and conscientious objectors to euthanasia (the categories are not mutually exclusive) may take advantage of the additional clarity introduced by ARELC's definition of MAD. They would seem to be legally justified in responding to every request to provide or facilitate euthanasia precisely as they would respond to a request to become involved in first degree murder.

Given the provisions in criminal law dealing with aiding, abetting and counselling offences, physicians adopting this approach could, it seems, refuse to conform to any part of ARELC touching euthanasia. This strategy could be adopted not only by individuals, but by regional health agencies, councils of physicians, pharmacists and dentists or other entities responsible for issuing or administering MAD guidelines. If this response were widespread, it would completely hamstring implementation of euthanasia, though it would not affect palliative care. Even a partial and scattered response of this kind would likely be administratively troublesome, especially if those being pressured to comply with the Act respond by seeking injunctions and making complaints to the police.

Complaints about refusals

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

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

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

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