A "uniquely Canadian approach" to freedom of conscience
Provincial-Territorial Experts recommend coercion to
ensure delivery of euthanasia and assisted suicide
Appendix "E"
International comparisons
Full Text
E1. Netherlands
E1.1 Consensual
homicide and assisted suicide continue to be prohibited by the Penal Code in
the Netherlands. The Dutch Termination of Life on Request and Assisted
Suicide (Review Procedures) Act does not actually authorize either
physician-assisted suicide or euthanasia, but provides a defence to
criminal charges for physicians who adhere to its requirements.1 In this
respect, it is analogous to the provisions of the Canadian Criminal Code on
therapeutic abortion from 1969 to 1988, and to the exemptions offered in the
Carter
decision.
E1.2 One of the requirements of the Dutch law is that
the physician must believe that the patient's request is "well-considered."
Another is that the physician must believe that the patient's suffering is "lasting and unbearable." A physician who did not actually believe one or
both of these things and who killed a patient or helped a patient commit
suicide or aided or abetted either act would have no defence to a charge of
murder or assisted suicide.
E1.3 Physicians who object to
euthanasia and assisted suicide for reasons of conscience usually do not
believe that a request for either can be "well-considered." Moreover, they
may not believe that a patient's suffering is "lasting and unbearable,"
particularly if the suffering can be relieved. On both points, the available
defence requires actual belief; doubt is insufficient to provide a defence to a criminal
charge.
E1.4 Since the legal prohibition of homicide and
assisted suicide is not displaced in such circumstances, there can be no
obligation on the part of objecting physicians to provide or refer for
euthanasia or physician-assisted suicide. They have no obligation to commit
or cooperate in the commission of a criminal offence. The Royal Dutch Medical
Association makes this clear:
Physicians are never
lawfully required to fulfil a request for euthanasia. If, for whatever
reason, they object to euthanasia they are not required to cooperate.2
E1.5 There is no duty to participate in or refer for
euthanasia or assisted suicide in the Netherlands.
E2. Luxembourg
E2.1 A physician who refuses to perform euthanasia or assisted suicide
must notify a patient of his refusal and the reasons for it.
The doctor who refuses to respond to a
request for euthanasia or assisted suicide shall be obliged, on the request
of the patient or of the person of trust, to send the patient's medical file
to the doctor appointed by the latter or by the person of trust.3
E2.2 This is a patient-initiated transfer of medical records.
E3. Belgium
E3.1 A physician who refuses to perform euthanasia or assisted
suicide must notify a patient of his refusal and the reasons for it, and, at
the request of the patient, transfer the medical file to another physician.4
E3.2 The obligation to notify the patient and transfer records upon
request are identical to those found in the law in Luxembourg. What is
described here is a patient-initiated transfer of medical records.
E3.3 Moreover,
consensual homicide continues to be prohibited in
Belgium. Like the law in the Netherlands, the Belgian Act on Euthanasia of
May 28, 2002, does not actually authorize euthanasia, but provides a defence to criminal charges for physicians who
adhere to its requirements.5 In this respect, it is analogous to the
provisions of the Canadian Criminal Code on therapeutic abortion from 1969
to 1988 and to exemptions offered in the Carter decision.
E3.4 One
of the requirements of the Belgian law is that the physician must ensure
that the patient's request is "well-considered." Another is that the
physician must ensure that the patient is in "a medically futile condition
of constant and unbearable physical or mental suffering that can not be
alleviated." A physician who did not actually ensure all of these things and who killed a patient or aided or abetted
homicide would have no defence to a charge of
murder.
E3.5 Physicians who object to
euthanasia for reasons of conscience usually do not
think that they can ensure that a request for it is "well-considered."
Moreover, they are unlikely to think that a patient's condition can be described as
"medically futile," and may well believe that suffering can be alleviated.
On both points, the available defence requires a firm conclusion; doubt is insufficient to
provide a defence to a criminal charge.
E3.6 Since the is a
legal prohibition of homicide is not displaced in such
circumstances, there can be no obligation on the part of objecting
physicians to provide or refer for euthanasia. They have no obligation to
commit or cooperate in the commission of a criminal offence.
E4.
Oregon
E4.1 A physician who is unable or unwilling to provide
assisted suicide must, at the request of the patient, transfer the medical
file to another physician. This is a patient-initiated transfer of medical
records like that required in Luxembourg and Belgium.
E4.2 The Oregon Death with
Dignity Act allows health care facilities to prohibit "participation"
in assisted suicide on their premises. In that particular situation - when a
physician wants to refer a patient for assisted suicide - the law
provides that "participation"
does not include referral. Thus, the health care facility may prohibit the
provision of a lethal drug on its premises, but may not prohibit a referral
by a willing physician to an external source.6
E4.3 The special
definition of "participation" to exclude referral in this particular
situation confirms that the term would normally be understood to include
referral; a special definition would otherwise be unnecessary.
E5. Washington (state)
E5.1 A physician who is unable or unwilling to provide
assisted suicide must, at the request of the patient, transfer the medical
file to another physician. This is a patient-initiated transfer of medical
records like that required in Luxembourg, Belgium and Oregon.
E5.2 The Washington Death
with Dignity Act allows health care facilities to prohibit
"participation" in assisted suicide on their premises. In that particular
situation - when a physician wants to refer a patient for assisted suicide -
"participation" does not include referral. Thus, the health care facility
may prohibit the provision of a lethal drug on its premises, but may not
prohibit a referral by a willing physician to an external source.7
The provision is identical to that in Oregon's Death with Dignity Act.
E5.3 The special definition of "participation" to exclude referral in
this particular situation confirms that the term would normally be
understood to include referral; the special definition would otherwise be
unnecessary.
E6. Vermont
E6.1
Vermont's Patient Choice and Control at the End of Life Act is not silent on the subject of referral. It imposes a
duty of referral only on physicians who wish to provide assisted suicide [§
5283.a(7)].8 The statute does not impose a duty of referral on physicians who
refuse to participate in assisted suicide.
E6.2 Instead, the
statute states that "a physician, pharmacist, nurses or other person shall
not be under any duty, by law, or contract, to
participate in the provision
of a lethal dose of medication to a patient." [§ 5285(a). Emphasis added]
Note particularly that the statute nullifies any duty that might be said to
exist at common law or through the operation of another statute.
E6.3 Since, in Vermont, only physicians can prescribe a lethal does of
medication and only physicians or pharmacists can dispense it, the extension
of protection to nurses or other persons indicates that the term "participate" is used in the statute in its normal sense, to encompass other
acts that may contribute to the provision of lethal medication, such as
referral.
E7. California
E7.1 California's assisted suicide law provides that
health care providers may refuse to "participate" in any way in the
provision of assisted suicide. They may refuse "to inform a patient
regarding his or her rights" to assisted suicide, and they may refuse to
refer to a physician who provides assisted suicide.9
If a health care provider is unable or unwilling to
carry out a qualified individual's request under this
part and the qualified individual transfers care to a
new health care provider, the individual may request a
copy of his or her medical records pursuant to law.10
E7.2 Facilities may prohibit employees, contractors or
others working within the scope of their employment on their premises from
participating in assisted suicide,11 as
long as it first provides notice of its policies.12
Having given notice, they may take action for policy violations.13
However, they may not prohibit employers, contractors, etc. from
participating in assisted suicide elsewhere.14
E7.3 Facilities may not prohibit employees, contractors
or others on their premises from performing a diagnosis or assessment (even
if it could be used for the purpose of facilitating assisted suicide),
informing a patient of the diagnosis, prognosis, etc. advising a patient
about the availability of assisted suicide elsewhere, or, upon the patient's
request, providing a referral to another health care provider for asssited
suicide.15 The provision is
analogous to laws in Oregon (E4.2) and Washington
(E5.2).
E7.4 In the particular situation described in E7.3, when a
physician wants to refer a patient for assisted suicide,
"participation" does not include referral. The special definition of
"participation" to exclude referral in this particular situation confirms
that the term would normally be understood to include referral; the special
definition would otherwise be unnecessary.
Notes:
1.
Termination of Life on Request and Assisted
Suicide (Review Procedures) Act
(Accessed 2015-07-24).
2. Royal Dutch Medical Association,
Euthanasia in
the Netherlands
(Accessed 2015-07-24).
3.
Euthanasia and Assisted Suicide: Law of 16
March, 2009 - 25 Questions, 25 Answers. Appendix 1: Law of 16 March,
2009 on euthanasia and assisted suicide, Chapter VIII, Article 15. Grand
Duchy of Luxembourg, Ministry of Health, Ministry of Social Security
(June, 2010)
(Accessed 2015-07-24).
4. Kidd D. (Trans.)
"Belgian Act on Euthanasia of
May 28, 2002" Section 14. Ethical Perspectives 9 2002 (2-3) p. 182.
(Hereinafter "BAE")(Accessed
2016-01-14).
5. BAE, Section 3.
6. Oregon,
Death with Dignity Act, Section
5(3)d(B)iii (Accessed 2015-07-26)
7. Washington,
Death with Dignity Act,
70.245.190(2)d(ii)C (Accessed 2015-07-26)
8. Vermont,
Act 39- Patient Choice and Control at the End
of Life Act (Accessed 2015-04-25)
9.
An act to add and repeal Part
1.85 (commencing with Section 443) of Division 1 of the Health and Safety
Code, relating to end of life (Hereinafter "California HSC") 443.14
(e)2
10. California HSC 443.14 (e)3
11. California HSC 443.15 (a)
12. California HSC 443.15 (b)
13. California HSC 443.15 (c)
14. California HSC 443.15 (d)
15. California HSC 443.15 (f)3