C1.    Institutions

C1.1    Meaning of "institution" 
C1.2    "Institutions" must allow or arrange for euthanasia or assisted suicide
C1.3    All "institutions" must disclose position on euthanasia and assisted suicide
C1.4    "Institutions" must not require patients/residents to give up "the right to access," interfere with employees providing eutanasia or assisted suicide elsewhere

C2.    Objecting physicians/health care providers

C2.1  Objecting physicians must provide information on "all options"
C2.2  Objecting physicians must disclose views on euthanasia and assisted suicide
C2.3  Objecting physicians must not discriminate
C2.4  Objecting physicians must act as critical enablers

C2.4.1  Three alternatives
C2.4.2  Referral
C2.4.3  Direct transfer of care
C2.4.4  Transfer to "a publicly-funded system" or "third party"
C2.4.5  The Experts' "system/third party" and the CMA's "central service"

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C1.    Institutions

C1.1    Meaning of "institution"

C1.1.1    The Experts want all health care institutions to become "critical enablers" of euthanasia and assisted suicide,1 but they do not stop with health care institutions. The Experts want euthanasia and assisted suicide to be provided wherever people live,2 and "wherever people are living and dying."3

C1.1.2    This means that the recommendations that refer to "institutions" apply not just to hospitals and hospices, but to correctional institutions, nursing homes, retirement homes, assisted living and extended care facilities, and group homes for mentally handicapped or disabled persons such as those run by L'Arche:4 in short, to any residential facility.

C1.1.3    As a result, in the commentary below, while the term "institution" is retained in direct reference to the relevant recommendation, it is replaced elsewhere by "facility,"  and "patient" is replaced with "patient/resident."

C1.2	All "institutions" - public and private - must allow euthanasia or assisted suicide on premises, or arrange for it to be done elsewhere (Recommendation 37: p. 46-47)
	Faith-based "institutions" must allow euthanasia and assisted suicide on their premises, or arrange for it to be done elsewhere (Recommendation 38: p. 47)

C1.2.1    Recommendations 37 (Non-faith based institutions) and 38 (Faith-based institutions) are confusing and misleading.  The Experts purport to distinguish between the obligations of faith-based and non-faith based facilities to participate in euthanasia and assisted suicide, but, in fact, the obligations are identical.  The distinction in the Report between "faith-based" and "non-faith-based" institutions is a meaningless.

C1.2.2    While it is true that more detail is provided about what is to be required of faith-based facilities, the details are primarily of interest because they illustrate that the Experts believe that religiously motivated citizens are more likely to abandon their patients/residents or discriminate against them.5

C1.2.3    In brief, the Experts want to force all facilities, whether or not they are "faith-based," to allow patients/residents to be killed or helped to commit suicide on their premises, or to arrange for an "effective transfer" of the patient/resident and his records to an "institution" where that can be done.

C1.2.4    An "effective transfer" means "a safe and timely transfer to a non-objecting institution" where the patient/resident "can be assessed and treated by a health care provider who is willing and able to assess whether the patient meets the eligibility criteria . . .and, if so" provide euthanasia or assisted suicide.

C1.2.5    If a "safe and timely transfer" is not possible, the Experts want all facilities forced to allow the patient/resident to be assessed and killed or helped to commit suicide on their premises.

C1.2.6    It is true that the Experts explicitly impose the latter requirement only on "faith-based" facilities, but it would be absurd to suppose that the Experts really want to force denominational facilities to allow euthanasia and assisted suicide in such circumstances, while exempting state facilities.

C1.2.7    It is unlikely that an objecting facility would decline to arrange a transfer for a patient/resident who merely wished to explore the possibility of euthanasia or assisted suicide in a different environment. Similarly, it is unlikely that a problem would arise if a patient/resident were to identify and request a transfer to a facility willing to provide assisted suicide or euthanasia. In neither case would the objecting facility be actively enabling euthanasia or assisted suicide.

C1.2.8    However, recall that the Experts demand that a patient/resident seeking euthanasia or assisted suicide must be completely relieved of the "burden" of finding a provider.6 Recommendation 38 states that the objecting facility - not the individual - must "make arrangements for an effective transfer."  Some facilities are likely to consider this active involvement to constitute unacceptable complicity in homicide and suicide, but the Experts want them forced to do so.

C1.2.9    Recommendations 37 and 38, understood within the context of the Report, are designed to compel all objecting facilities, from general hospitals to L'Arche group homes, to become critical enablers of euthanasia and assisted suicide, at least to the extent of helping to arrange for the procedures.

C1.3	All "institutions" must disclose position on and limits to euthanasia and assisted suicide (Recommendation 34: p. 46)

C1.3.1    Recommendation 34, if adopted, will affect every institution, facility, association, organization or private individual providing either health care or residential living for elderly, handicapped or disabled persons in Canada.

C1.3.2    First: every one will have to establish "an institutional position on physician assisted dying."

C1.3.3    Second: the default position proposed by the Experts is that all "institutions" will allow euthanasia and assisted suicide on their premises. In fact, none will be allowed to absolutely prohibit the procedures (C1.2.5).

 C1.3.4     Third: facilities that don't adopt the default position and intend to limit euthanasia or assisted suicide on their premises will have obligations to ensure patients/residents can access the procedures elsewhere (C1.2.3, C1.2.4, C1.2.5).

C1.3.5     Recommendation 34 effectively requires "institutions" to disclose their "position," departures from the default position, and policies under C1.2.4.

C1.3.6     The cumulative effect of the recommendations will be to require all "institutions," from general hospitals to Ottawa L'Arche group homes, to formulate a policy on facilitating patient/resident access to euthanasia and assisted suicide, and notify residents/patients/applicants of that policy.

C1.3.7    The Experts explain that prior disclosure of institutional policies limiting euthanasia and assisted suicide will allow patients/residents to decide whether or not to enter an facility. At first glance, this seems to allow people the freedom to choose whether or not they wish to live in or be treated in facilities that allow patients/residents to be killed or commit suicide.

C1.3.8    However, if the Experts have their way, no facility in Canada - public, private or faith-based - will be allowed to completely prohibit euthanasia and assisted suicide on their premises, and all will be forced to arrange for the services to be provided elsewhere (C1.2.3).

C1.3.9    From the perspective of patients/residents/applicants, freedom of choice, according to the Experts, does not include the freedom to choose to live where euthanasia and assisted suicide are forbidden.  Freedom to choose means, at most, the freedom to choose facilities - where they exist - that will only allow patients to be killed or commit suicide on their premises in exceptional circumstances.

C1.3.10    From a facility perspective, advance notice to potential patients/residents may help to avoid some conflicts.  However, as noted above, the requirement for advance notice is not intended to allow them to operate without involvement in euthanasia and assisted suicide, but to force them to make plans to facilitate the procedures, based on the assumption that they are obliged to do so.

C1.3.11   Particularly in the case of facilities providing homes or treatment for people who are disabled, mentally handicapped or mentally ill, the requirement to advise all potential patients/residents of the facility policy on how to access euthanasia and assisted suicide may well be seen as offensive, contrary to the mandate of the facility and insensitive to or even abusive of applicants and residents.

C1.4	"Institutions" must not require patients or residents to give up "the right to access" assisted suicide and euthanasia(Recommendation 35: p. 46)

"Institutions" must not prevent physicians or employees from providing assisted suicide or euthanasia elsewhere (Recommendation 36: p. 46)

C1.4.1    Recommendations 35 and 36 must be read together, as the Experts state that both have the same purpose: "to limit the power of institutions" to restrict patient autonomy.

C1.4.2    Recommendations 35 and 36 have nothing to do with the expectation that patients will be provided with information sufficient to make informed decisions, or that they will be advised of all "legal options," including euthanasia and assisted suicide.  Those points are covered by Recommendations 31 and 32. 

C1.4.3    Recommendation 35 assumes that Carter provides a positive right to assisted suicide and euthanasia: that it give citizens the right to demand that the state or others must kill them or help them commit suicide. 

C1.4.4    In fact, the ruling provides a defence to murder and assisted suicide charges in certain circumstances - nothing more. It is, at best, a right not to be prevented from obtaining assisted suicide and euthanasia (Appendix A2.8, A3.11).  Facilities cannot require individuals to give up that right.

C1.4.5    On the other hand, to manifest and make effective its opposition to killing patients or helping them to commit suicide, and/or to manifest and make effective a commitment to palliative care, religious or moral beliefs, or a philosophy of life or medicine, the management of an objecting facility could:

• refuse to allow euthanasia or assisted suicide to be provided on the premises;
• refuse to assist in finding someone willing to provide the procedures;
• refuse to arrange for euthanasia or assisted suicide elsewhere (while cooperating in transfers of care);
• prohibit emloyees or physicians in the facilty from arranging euthanasia or assisted suicide elsewhere during interactions with patients/residents (while respecting principles of informed medical decision making); 
• give preference in hiring and promotion to applicants or employees supportive of facility philosophy
• publicize such policies and disclose them to applicants for admission, employment or privileges.

C1.4.6    Applicants for admission, employment or privileges who were unwilling to abide by such policies would be free to apply to a different facility.  If they changed their minds after admission or joining facility staff, they would be free to leave.  This approach does not require them to give up rights established by Carter.

C1.4.7    However, it appears that Recommendations 35 and 36 are intended to prohibit such policies.  Taken together, they are apparently designed to prohibit objecting facilities from disciplining or dismissing employees or physicians who, while working in the facilty, actively subvert its fundamental commitments by promoting or arranging for euthanasia or assisted suicide during interactions with patients/residents.  It appears that the Experts want to establish a regime that prohibits the manifestation or expression of effective opposition to euthanasia and assisted suicide.

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C2    Objecting physicians/health care providers

• Note: The Experts want other health care professionals to be able to provide euthanasia and assisted suicide and to participate in delivering the services through teams, so reference to "physicians" here must be understood to apply to other health care workers who are acting in the place of physicians.

C2.1	Objecting physicians must provide information on "all options," regardless of their beliefs (Recommendation 31:  p. 44)

C2.1.1    The Experts recommend that physicians should be required to offer the options of therapeutic homicide or suicide, "regardless of their personal beliefs." Providing information responsive to a patient's questions or expressed interest would be necessary to meet the requirements of informed medical decision making.

C2.1.2    If the Experts mean only that physicians should be required to provide information necessary to allow informed decision making if a patient asks about euthanasia or assisted suicide, this is unlikely to be problematic.

• In the Project's experience, physicians who object to providing morally contested procedures do not normally object to providing information that a patient needs in order to make informed decisions. 
• Moreover, the Project's experience is that objecting physicians are particularly sensitive to and anxious to respond to the difficult circumstances that may cause patients to request euthanasia or physician assisted suicide. 
• The suggestions made in recent guidance from the College of Family Physicians of Canada indicate the kind of response that should be presumed and encouraged.7

C2.1.3   On the other hand, the Experts may believe that patient cannot provide valid informed consent to other forms of treatment if they are not apprised of the options of assisted suicide and euthanasia immediately upon diagnosis, or at least before agreeing to other forms of treatment.  This would be consistent with the Experts recommendation that the options be offered to patients even if they are not suffering, so that they can complete advanced directives authorizing euthanasia and assisted suicide in anticipation of suffering (Appendix B2).

C2.1.4    It is not clear whether or not the Experts want physicians forced to gratuitously offer euthanasia and assisted suicide as treatment options in the absence of any indication of interest from a patient. 

C2.1.5     In contrast, a draft policy proposed by the College of Physicians and Surgeons of Manitoba presumes that a request for euthanasia or physician assisted suicide will come from the patient.  It does not impose a requirement that physicians offer patients the options of euthanasia or assisted suicide.8 This is prudent, for three reasons.

C2.1.6    First: the Carter decision did not strike down the law against counselling suicide [241(a) Criminal Code], so the gratuitous suggestion of physician assisted suicide even to patient who meets the Carter criteria may expose physicians to criminal prosecution.

C2.1.7    Second: physicians may believe that it would sometimes be harmful or even abusive to gratuitously offer assisted suicide and euthanasia as treatment options: the case of a patient just blinded or paralysed by an industrial accident comes to mind.

C2.1.8    Third, and more commonly, it is likely that many physicians would find it at least insensitive to offer assisted suicide and euthanasia as treatment options upon a diagnosis of dementia, congestive heart failure, chronic obstructive pulmonary disease, stroke, or major depressive disorder, all of which would qualify as irremediable medical conditions under the terms of the Carter ruling.

C2.1.9    The concerns noted in C2.1.6 to C2.1.8 are likely to be common not only among objecting physicians, but among physicians willing to be involved in euthanasia and assisted suicide in at least some circumstances.

C2.2	Objecting physicians must disclose views on euthanasia and assisted suicide to patients, and the implications of their views (Recommendation 32: p. 44)

C2.2.1    The Experts recommend that physicians "appropriately inform their patients of the fact and implications of their conscientious objections," and provide ongoing treatment "in a non-discriminatory manner."

C2.2.2    This displays notable bias in favour of euthanasia and assisted suicide, ironically cloaked in a pretence of moral/ethical neutrality. Killing patients and helping them commit suicide in defined circumstances is, for the Experts, legally and morally/ethically normative. Hence, they do not recognize that the views of physicians who do not object to killing patients or helping them commit suicide also have implications for patients.

C2.2.3    When appropriate, both objecting and non-objecting physicians should notify patients of their views on assisted suicide and euthanasia. Any further requirement for a discussion of the implications of their views should apply equally to objecting and non-objecting physicians.

C2.3	Objecting physicians must provide ongoing treatment of patients seeking euthanasia and assisted suicide in a non-discriminatory manner (Recommendation 32: p. 44)

C2.3.1    The Experts' warning against illicit discrimination is directed to only to objecting physicians: another example of bias.

C2.3.2    If it is reasonable to suspect that objecting physicians might illicitly discriminate against patients who want euthanasia or assisted suicide, it is equally reasonable to suspect that non-objecting physicians might illicitly discriminate against patients who do not want euthanasia and assisted suicide. Thus, the warning against illicit discrimination ought to be addressed to both.

C2.3.3    Moreover, there is actually more reason to offer a warning about illicit discirmination to physicians willing to provide euthanasia and assisted suicide, because they are more likely to be charged with illicit discrimination by human rights tribunals or regulatory authorities. University of Ottawa law professor Amir Attaran attempted to make this point, albeit in the wrong context:

Across Canada, laws forbid service providers from discriminating against the disabled. In Ontario, the Human Rights Code defines a "disability" in broad terms that include serious illnesses - certainly any "grievous and irremediable" illness, to borrow the Supreme Court's phrase. Thus, when doctors offer the full standard of care to patients - but not to disabled patients, who get a lesser standard of care because it excludes assisted dying - that is discrimination.9

C2.3.4    For the most part, Professor Attaran's column cannot be taken seriously,10 but the argument he attempts on this issue is not entirely without legal merit if it is recast to apply to non-objecting physicians who wish to limit the scope of their practices.

C2.3.5    Physicians who, for reasons of conscience or religion, refuse absolutely to participate directly or indirectly in assisted suicide and euthanasia are acting within the terms of the Carter ruling (Appendix A3).

C2.3.6    However, consistent with Professor Attaran's argument, that is not necessarily true of physicians who provide euthanasia or assisted suicide in some circumstances but not in others.

C2.3.7    Physicians willing to provide euthanasia and assisted suicide for patients who are terminally ill or disabled, but not the mentally ill, might well be accused of illicitly discriminating against the mentally ill. Physicians willing to provide euthanasia and assisted suicide for patients who are terminally ill, disabled or mentally ill, but not children and adolescents, might well be accused of illicitly discriminating against children and adolescents.

C2.3.8    This is corroborated by the position of the Quebec Commission on Human Rights and Youth Rights.  The Commission warned Quebec legislators that the failure to allow euthanasia for children and adolescents and the incompetent (which would include many patients with dementia and mentally illness) amounted to illicit discrimination.11 Speaking of Bill 52, M. Jacques Fremont, head of the Commission, said that if the bill were not changed to allow euthanasia for minors and the incompetent (it was not) "I guarantee you there will be a 16 year old who will go to court" and "the prohibition for incompetent minors will be quick-fried."12

C2.3.9    The legal threat posed by aggressive lawyers and law professors like Professor Attaran is most credible with respect to physicians willing to directly or indirectly provide euthanasia and assisted suicide for selected sub-groups of patients (e.g., the terminally ill), but who, for reasons of conscience or for other reasons, are unwilling to do so for other sub-groups (e.g., the mentally ill). It would seem that these physicians can reduce or minimize their legal jeopardy either by participating in euthanasia and assisted suicide for all patients under all conditions allowed by law, or by absolutely refusing to participate under any circumstances.

C2.4	Objecting physicians must act as critical enablers of therapeutic homicide and suicide (Recommendation 33: p. 44-45)

C2.4.1    Three alternatives

C2.4.1.1    Physicians who, for reasons of conscience or religion, refuse to kill patients or help them commit suicide are offered three alternatives by the Experts: referral, direct transfer of care, and transfer to a third party. The Experts do not expect objecting physicians and health care providers to assess the patient's eligibility for assisted suicide or euthanasia, but they do insist that objecting physicians and health care providers become critical enablers of euthanasia and assisted suicide.

C2.4.2     Referral

C2.4.2.1    The Experts do not define "referral." The omission is remarkable. Referral has been the centre of controversy in relation to morally contested procedures since the Project's inception in 1999. Since at least 2006, Advisory Group member Professor Jocelyn Downie has actively campaigned for compulsory "effective referral" for abortion, contraception, euthanasia and assisted suicide,13 as that term has been defined by the College of Physicians and Surgeons of Ontario (CPSO):

An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care. Patients must not be exposed to adverse clinical outcomes due to a delayed referral.14

C2.4.2.2    A serious controversy over the CPSO's policy imposing a demand for effective referral for morally contested services led to an ongoing lawsuit against the College.15 The College has since proposed that "effective referral" should be required for physicians unwilling to kill patients or help them commit suicide.16

C2.4.2.3    In addition to "effective referral," the term "referral" can be used in a narrow, technical sense to mean a formal arrangement for consultation with another physician. However, as it is frequently used by those demanding that physicians "refer for abortion" or "refer for euthanasia," it often means only providing contact information for a provider or directing the patient to someone who will provide the service.

C2.4.2.4    An expectation of referral under any of these forms would be not be problematic for physicians who have no objections to euthanasia or assisted suicide in principle, but who do not wish to write lethal prescriptions or lethally inject patients themselves. Nor would it be objectionable to physicians whose moral reasoning leads them to conclude that such referral absolves them of culpable complicity in homicide or suicide.

C2.4.2.5    However, all three forms of referral are unacceptable to physicians who consider such assistance to involve unacceptable complicity in wrongdoing. Their ethical or moral reasoning is exactly the same as that underlying refusal to provide contact information for a crack dealer or a pimp trafficking in adolescent flesh.

C2.4.3    Direct transfer of care

C2.4.3.1    Direct transfer of care is proposed as a second alternative. The Experts explain:

We recognize that some providers view a transfer of care as morally preferable to referral because, unlike referral, it is taken to neither explicitly nor implicitly affirm [*the moral acceptability of*] the service sought by the patient. (P. 45)

C2.4.3.2    The Experts propose that a direct transfer of care could be initiated after a patient has requested euthanasia or physician assisted suicide and has discussed end-of-life options with an objecting physician or health care provider.

A health care provider could transfer the patient to another health care provider for the assessment and treatment of the patient's medical condition and, if the patient meets the eligibility criteria, provision of physician-assisted dying. The receiving health care provider must be someone who is willing and able to accept the person as a patient and does not conscientiously object to physician-assisted dying. (P. 45)

C2.4.3.3    The Experts' claim that this "direct transfer" cannot be understood to explicitly or implicitly affirm the moral acceptability of euthanasia or assisted suicide is disingenuous. In no sense is this different from arranging for a patient with complex medical needs to be transferred to a specialist who can provide treatment an attending physician is unable to provide. These arrangements presume and thus implicitly affirm the moral acceptability and probable efficacy of the treatment in question. 

C2.4.3.4    Bluntly, the Experts demand that objecting physicians or health care providers find a colleague willing to accept and assess their patients and kill them or help them commit suicide if they are eligible.  Having found a willing colleague, they demand that objecting physicians arrange for the transfer of the patient for that purpose. 

C2.4.3.5    Draft guidance from the College of Physicians and Surgeons of Ontario adds a detail not included by the Experts, but obviously required in order to effect a "direct transfer."

The College acknowledges that the number of physicians and/or agencies to which a referral would be directed may be limited, particularly at the outset . . . and that this is relevant to any consideration of whether a physician has complied with the requirement to provide an effective referral.  In light of these circumstances, the College expects physicians to make reasonable efforts to remain apprised of resources that become available in this new landscape.17

C2.4.3.6    Requiring objecting physicians to maintain up-to-date lists of health care providers willing to kill patients or help them commit suicide underscores the degree of deliberate participation expected of them. 

C2.4.4    Transfer to "a publicly-funded system" or "third party"

C2.4.4.1    In view of the foregoing, it is not surprising that the Experts concede that "direct transfer" is likely to be problematic.  They offer a third option "for those who are not willing to provide a direct transfer of care on conscience or religious grounds."

C2.4.4.2    Those physicians, say the Experts, should be required to contact "a publicly-funded system designed to ensure that patients are able to access a health care provider willing to accept them as a patient for assessment" and provide euthanasia or assisted suicide if they are eligible. The objecting physicians would transfer the patient's records to the "publicly-funded system" to facilitate that process.

C2.4.4.3     The "publicly-funded system" to which the Experts refer is described in greater detail under Recommendation 4.

We recommend the creation of a publicly-funded care coordination system to link patients with an appropriate provider of physician-assisted death. . . We recommend that this system be modelled on successful examples used in other health care services (e.g. cancer care, organ transplantation). We envision them as "patient navigators", people who have an understanding of the field, knowledge of health care providers who are willing to provide physician-assisted dying . . . While the system's initial role would be to connect patients to physicians and manage the transfer of patients, over time they may also assist with helping patients understand the range of end-of-life options available, including palliative care. (Emphasis added)18

C2.4.4.4    This "system" (or "third party") is like a bus or taxi service that objecting physicians or health care providers would be expected to call to arrange for patients to be delivered to colleagues for the purpose of having them killed or helped to commit suicide. The Experts see that as its first priority. Only later ("over time") might this "system" begin to provide more information about options, while continuing as a euthanasia/assisted suicide delivery service.

C2.4.4.5    The Experts' comparison of their "system" or "third party" to existing organ transplant arrangements is instructive. The Experts believe that killing patients and transplanting organs are both morally/ethically acceptable.  Thus, policies and systems suitable for delivering hearts and livers to save patients lives can simply be adapted to deliver lethal injections and toxic prescriptions to end them.

C2.4.4.6    In British Columbia, for example, a physician who has a patient who may be a suitable candidate for organ donation calls a referral and notification number to determine if consent for donation has been given, and approaches the family after the Organ Donor Registry has been checked.  The physician actively manages the case and cooperates with other health care providers until the organs have been retrieved.19   A British Columbia physician who has a patient in need of an organ must do a preliminary assessment for contraindications and then register the patient in an on-line referral system, the first step toward matching the patient with a suitable donor and, ultimately, organ transplantation.20 

C2.4.4.7    Physicians managing donors and recepients are actively involved in the process leading to organ transplantation.  While a transplant may not ultimately occur for reasons beyond their control, it is clear that their actions are intended to culminate in a transplant, and that they are professionally and morally engaged in the process.

C2.4.4.8    The Experts demand the same level of professional and moral commitment to killing patients and helping them commit suicide through an analogous system.  This is just as unacceptable to many objecting physicians as effective referral and direct transfer.

C2.4.4.9    It does not seem that the Experts believe that these physicians are "genuinely wicked" - a position taken by Baroness Mary Warnock, another expert euthanasia activist.21 Nonetheless, the Experts obviously believe that objecting physicians are so seriously mistaken that their views do not deserve accommodation, and that they should be forced to provide direct transfers if their "system" or "third party" is not available.

C2.4.5    The Experts' "system/third party" and the CMA's "central service"

C2.4.5.1    The Experts' description of their "system/third party" is similar to a proposal supported by the Canadian Medical Association (CMA) (Appendix D3.18), but there are some notable differences.

C2.4.5.2    Key points in the CMA proposal:

• Physicians are not obliged
  • "to provide or participate"
  • "to refer the patient to a physician or a medical administrator who will provide assisted dying"
• Objecting physicians are obligated to respond to a patient's request and must
  •  provide the patient with complete information on all options available, including assisted dying; and
  • advise the patient on how they can access any separate central information, counseling, and referral service; and
  • provide relevant medical records "when authorized by the patient"; and
  • transfer the patient's chart to the new physician when authorized by the patient to do so.
• Objecting physicians must not
  • discriminate against a patient, or
  • "impede or block access" to euthanasia or assisted suicide

C2.4.5.3    The CMA's proposed "separate central information, counseling, and referral service" appears to differ from the Experts "system/third party" in three ways.

C2.4.5.4    First: consistent with the terminology in Carter (Appendix A3.1 to A3.3), the CMA states that objecting physicians are not obliged "to provide or participate" in euthanasia or assisted suicide. 

• At no point do the Experts make this statement.  On the contrary: they believe that physicians are legally and ethically obliged to actively enable euthanasia and assisted, and their recommendations concerning their "system/third party" reflect that belief.

C2.4.5.5    Second: the CMA proposal does not require objecting physicians to contact the central service or initiate a transfer of patients and records. Their involvement is limited to providing information to the patient, and responding to requests to patient-initiated tranfer of records.  The initiative remains with the patient. 

• In contrast, consistent with their demand that patients be completely relieved of the "burden" of finding a willing physician, the Experts require objecting physicians to make arrangements through their "system/third party" just as physicians must make arrangements for organ transplants.

C2.4.5.6    Third: the "central information, counseling, and referral service" recommended by the CMA was acceptable to organizations representing many objecting physicians (Appendix D3.8) precisely because it was understood not to be a euthanasia/assisted suicide delivery system.

• The Experts clearly envisage their "system/third party" to function as a euthanasia/assisted suicide delivery system, analogous to an organ transplant system.

C2.4.5.7    It is not unreasonable to be concerned by these differences, and it would be imprudent to ignore them entirely. It appears that, but for the Carter decision, every alternative recommended by the Experts would expose a physician to prosecution as a party to the offence of first degree murder or assisted suicide, or conspiracy to commit first degree murder or assisted suicide.

C2.4.5.8    The Project's position is that the CMA position is clearly preferable because it ensures patient access without compromising physician freedom of conscience.

C2.4.5.9     Even those who see no essential difference between the CMA and the Experts' proposal have good reason to prefer the former for pragmatic reasons. Having been developed by physicians themselves, it is more likely to enjoy the support of the medical profession, and thus generate fewer problems in implementing the Carter decision, particularly if legislators and regulators work cooperatively with the CMA.

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Notes:

1. Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Final Report (30 November, 2015) (Hereinafter "Report"), p. 43.

2.  Report, Recommendation 27: p. 41.

3.  Report, p. 46.

4.  L'Arche: What is L'Arch? (Accessed 2015-12-22).

5.  Thus the Experts felt it important to state, "Faith-based institutions have a duty to care for and not abandon the patients within their instititution," - a reminder not given to non-faith based institutions. Report, p. 47.

6.   Report, p. 43.

7.  College of Family Physicians of Canada, A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and Voluntary Euthanasia (September, 2015)  p. 5 (Accessed 2015-10-30).

8.  College of Physicians and Surgeons of Manitoba, Draft Statement on Physician Assisted Dying (15 October, 2015)

9.  Attaran A. "Doctors can't refuse to help a patient die - no matter what they say." iPolitics, 13 November, 2015 () Accessed 2015-12-28.

10.  Murphy S. "Amir Attaran and the elves: A law professor makes much ado. Responding to 'Doctors can't refuse to help a patient die - no matter what they say.'" Protection of Conscience Project.

11.  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#010.

12.  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#114.

13.  See, for example, Rodgers S. Downie J. "Abortion: Ensuring Access." CMAJ July 4, 2006 vol. 175 no. 1 doi: 10.1503/cmaj.060548 (Accessed 2015-06-17); Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 69, 101 (Accessed 2014-02-23)

14.  College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights (March, 2015) (Accessed 2015-12-28).

15.  Ontario Superior Court of Justice, Between the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians' Societies, Dr. Michelle Korvemaker, Dr. Betty-Ann Story, Dr. Isabel Nunes, Dr. Agnes Tanguay and Dr. Donaldo Gugliotta and College of Physicians and Surgeons of Ontario, Notice of Application, 20 March, 2015.

16.  College of Physicians and Surgeons of Ontario, Interim Guidance on Physician Assisted Death (Draft) Lines 156-189 (Accessed 2015-12-29).

17.  College of Physicians and Surgeons of Ontario, Interim Guidance on Physician Assisted Death (Draft) Note 3, p,. 5 (Accessed 2015-12-29).

18.  Report, p. 24

19.   BC Transplant, Critical Care Resources. (Accessed 2016-01-12)

20.  BC Transplant, Clinical Guidelines for Kidney Transplantation (Revised January 29, 2015) p. 4 (Accessed 2016-01-12)

21.  News Letter, "Doctors who refuse euthanasia 'wicked,' expert claims." 6 January, 2009. (Accessed 2015-12-29)