Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude

Legal Commentary

Protection of Conscience Project

A "uniquely Canadian approach" to freedom of conscience

Provincial-Territorial Experts recommend coercion to ensure delivery of euthanasia and assisted suicide

Recommendations designed to broaden and maximize impact of Supreme Court ruling

Sean Murphy*

Abstract

Provincial Territorial Expert Advisory Group Report

The Experts' recommendations are intended to extend and maximize the impact of the Carter ruling. They will effectively require all institutions, facilities, associations, organizations and individuals providing either health care or residential living for elderly, handicapped or disabled persons to become enablers of euthanasia and assisted suicide. This will entail suppression or significant restriction of fundamental freedoms.

The broader the criteria for the provision of morally contested procedures, and the more people and groups captured in the Experts' enablers' net, the greater the likelihood of conflicts of conscience. Relevant here are recommendations to make euthanasia/assisted suicide available to mentally ill and incompetent persons, and to children and adolescents, even without the knowledge of their parents.

The Experts' distinction between "faith-based" and "non-faith-based" facilities is meaningless. They impose identical obligations on both. All will be forced to allow homicide and suicide on their premises, or compelled to arrange for euthanasia or assisted suicide elsewhere.

Likewise, they recommend that objecting physicians be forced to actively enable homicide or suicide by providing referrals, arranging direct transfers or enlisting or arranging the enlistment of patients in a euthanasia/assisted suicide delivery system.

The Supreme Court did not rule that people ought to be compelled to become parties to homicide and suicide, but that is what the Experts recommend. This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them and a serious violation of human dignity.

Other countries make euthanasia and assisted suicide available without attacking fundamental freedoms. In this respect, the Experts' claim to have produced "a uniquely Canadian approach to this important issue" is regrettably accurate. They fail to provide any evidence that the suppression of freedom of fundamental freedoms they propose can be demonstrably justified in a free and democratic society.

Abstract

V. Conclusion

Appendix "A" Supreme Court of Canada, Carter v. Canada (Attorney General), 2015 SCC 5

A1.    Carter criteria for euthanasia and physician assisted suicide
A2.    Carter and the criminal law
A3.    Carter and freedom of conscience and religion

Appendix "B" Expert recommendations re: broadening Carter criteria

B1. Expanding the Carter criteria

B1.1    "Grievous and irremediable medical condition" includes mental illness
B1.2    Suffering not a prerequisite
B1.3    Competence not a prerequisite: euthanasia for dementia
B1.4    Euthanasia and assisted suicide for children and adolescents
B1.5    Assessment, euthanasia and assisted suicide by non-physicians

B2. Increasing the impact of Carter

B2.3    Doctor shopping
B2.4    No "waiting/reflection" period
B2.5    Physicians need not be present at suicides
B2.6    Euthanasia & assisted suicide in hospitals, hospices, etc.
B2.7    Families and caregivers may not be advised

Appendix "C" Expert recommendations re: freedom of conscience and religion

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    Must provide information on "all options"
C2.2    Must disclose views on euthanasia and assisted suicide
C2.3    Must not discriminate
C2.4    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"

Appendix "D" Canadian Medical Association on euthanasia and assisted suicide

D1. CMA policy: Euthanasia and Assisted Death (2014)
D2. CMA Annual General Council, 2015

D2.1 Surveys on support for euthanasia/assisted suicide
D2.2 Physician freedom of conscience

D3. CMA rejects "effective referral"

Appendix "E" International comparisons

E1.    Netherlands
E2.    Luxembourg
E3.    Belgium
E4.    Oregon
E5.    Washington
E6.    Vermont
E7.    California

Appendix "F" An Act to Safeguard Against Homicide and Suicide

I. Background

I.1 Formation and work of the Advisory Group

I.1.1 The Provincial-Territorial Expert Advisory Group on Physician Assisted Dying was formed in August, 2015, under the auspices of the government of the province of Ontario, in response to the ruling of the Supreme Court of Canada in Carter v. Canada (Appendix "A").

I.1.2 The venture involved the three Canadian territories (Yukon, Northwest Territory and Nunavut) and eight other provinces (excluding Quebec).1 The Group functioned with the support of a secretariat provided by the Ontario Ministry of Health and Long Term Care.2 The announcement of the formation of the Advisory Group did not explain how the nine Experts were selected, or by whom.3

I.1.3 From August until November, 2015, the Experts received 58 written submissions, held teleconferences with 24 groups or individuals4 and conducted other research. The Experts' Final Report offers non-binding advice to the provincial and federal governments about how to implement the ruling of the Supreme Court of Canada in Carter v. Canada. It includes 43 specific recommendations. This commentary reviews 19 of them.

II. Overview of the Final Report

II.1 Moral/ethical unanimity

II.1.1 The Experts were unable to agree on whether or not a person NOT diagnosed with a grievous and irremediable medical condition should be able to complete an advanced directive authorizing euthanasia or assisted suicide.5 Nor could they agree about whether state control of freedom of conscience and religion should be exercised by legislation or by medical regulators.6

II.1.2 With the exception of these two points, all 43 recommendations and everything else proposed in the Report enjoy the unqualified support of all nine Experts, made obvious by the frequent use of the words "we" and "our." The unanimity is remarkable, particularly since the Experts propose criteria for euthanasia and assisted suicide broader than those laid down by the Supreme Court, as well as recommending policies and legislation to extend and maximize the impact of the Carter ruling.

II.1.3 A single statement explains how the Experts arrived their unanimous conclusions. We are told that their deliberations "involved re-considering and sometimes putting aside deeply-held personal views to find common ground in the interest of Canadian patients and the public."7

II.1.4 This means that, among the nine Experts, it is "common ground" that killing patients "should be treated as one appropriate medical practice within a continuum of services available at the end-of-life."8 It means that all nine Experts believe that it is morally/ethically acceptable for health care professionals to kill people in defined circumstances to relieve pain or suffering. If that were not the case, at least one dissenting opinion ought to have been included in the Report, at least with respect to the broadening of eligibility criteria and the coercion of objecting physicians and institutions. There are none.

II.1.5 To say that one agrees that it is morally/ethically acceptable to kill people to put an end to their suffering means that is what one actually believes. It would be absurd to suggest otherwise. Someone who agrees with capital punishment in certain circumstances clearly believes that it is morally acceptable in those circumstances. The Experts' unanimous view that euthanasia and assisted suicide are morally/ethically acceptable therapies gives direction to the Report and has a notable impact on their recommendations.

II.1.6 It also affects the tone of the Report. Apparently on the strength of their unanimous opinion, the Experts adopt a condescending attitude toward the presumed minority who object to euthanasia and physician assisted suicide. Thus, they acknowledge sympathetically that killing patients and helping them commit suicide "remains ethically challenging for some." (Emphasis added.)9

II.1.7 Nonetheless, the Experts want governments and regulators to use the force of law and policy to compel the 'ethically challenged' to accept their unanimous judgment that killing people in order to end suffering, albeit in defined circumstances, is not only legally, morally and ethically acceptable, but legally, morally and ethically obligatory. In support of this, they offer a "Statement of Principles and Values."

II.2 "Statement of Principles and Values"

II.2.1 Under this head, the Experts list a number of "individual and institutional rights and duties" and "pan-Canadian principles" upon which they relied to produce their recommendations. Among them they include the statement, "When rights conflict, they must be reconciled,"10 a point repeated elsewhere in the Report.11

II.2.2 What the Experts do not acknowledge is that there is fundamental disagreement about the meaning and scope of virtually all of the rights, duties and principles they identify.

II.2.3 For example: a "right to patient autonomy" is commonly acknowledged, and there is broad agreement about what that means in many circumstances. A particular understanding of patient autonomy underlies decision of the Supreme Court in Carter, and it is natural for the Experts to apply it in recommendations intended to implement the decision.

II.2.4 However, the Euthanasia Prevention Coalition also appealed to patient autonomy in its leading arguments when it intervened against euthanasia in the Carter case. Legalizing assisted suicide and euthanasia, it said, would diminish "real autonomy" and would be "fundamentally inconsistent with the principles of autonomy and choice."12, 13

II.2.5 Further: even those who agree that patient autonomy justifies euthanasia and assisted suicide may not agree that it justifies the Experts' view that assisted suicide should be available to the mentally ill, or that unwilling physicians should be forced to participate in killing their patients.

II.2.6 The same kind of difficulty attends the other rights and duties they list. Most Canadians agree that "the rights of freedom of conscience and religion" are important, but the meaning and scope of these rights and freedoms are sharply disputed. Everyone agrees that patients must not be "abandoned," but many do not agree that offering palliative care while refusing to provide lethal injection constitutes abandonment. Protection from illicit discrimination is generally accepted as sound public policy, but a number of Canadian law societies manifest their opposition to discrimination by apparently discriminating against Trinity Western University.14

II.2.7 Now, any 'reconciliation of rights' is impossible absent agreement about the nature and scope of the rights in question. For example, the Experts assert a right to assisted suicide and euthanasia under the rubrics of a right to "equitable access to health services." However, this is based on their presumption that homicide and suicide are therapies, a presumption generally rejected by objecting health care professionals. To demand that objectors accept the Experts' presumption does not reconcile freedom of conscience, but steamrollers it, and that is true even if Carter is cited as authority for the presumption.

II.2.8 Hence, while the Experts' "Statement of Principles and Values" is useful as a framework for purported justification of what they propose - including the suppression of fundamental freedoms - it is useless as a starting point for a genuine 'reconciliation of rights.'

II.3 Recommendations broadening Carter criteria for assisted suicide, euthanasia

II.3.1    The Experts recommend that criteria for therapeutic homicide and suicide be extended by legislation beyond those set by the Supreme Court of Canada in Carter. This is possible because the Court set only the base line for legislation. Parliament cannot restrict the Carter criteria, but it can broaden them.

II.3.2    The broadening of some aspects of Carter does not directly impact the exercise of freedom of conscience and religion by individuals, groups and institutions. For example: public funding for euthanasia and assisted suicide is not required by Carter, but it is recommended by the Experts. Such recommendations, and others pertaining to oversight, reporting, research, etc. are not considered here.

II.3.3    However, the broader the criteria for the provision of morally contested procedures, the greater the likelihood of disagreement and of conflicts of conscience among those expected to provide them. Further: some recommendations that do not modify the Carter criteria have practical consequences that may result in conflicts of conscience among health care workers. These recommendations are discussed in detail in Appendix "B."

II.4 Recommendations impacting freedom of conscience and religion

II.4.1 Patient autonomy is one of the principal justifications offered for legalizing therapeutic homicide and suicide.15 On the other hand, those supporting euthanasia and assisted suicide frequently emphasize that most people who obtain the services are anything but vulnerable. In his oral submission, lawyer Joseph Arvay told the Supreme Court how one of his clients had climbed Mount Kilimanjaro and gone to Russia to protest the U.S. boycott of the Olympics, and described another as "a Renaissance man." These were people, he said, who had a "zest for life."

These aren't vulnerable people. These are the people we're representing. People who have a determined wish to die. People who are vulnerable never get through the hoops. Because the hoops are really quite onerous. A person who's really depressed will never get through the hoops. That's what the evidence was in the case.16

II.4.2 Later in his submission, he attacked assumptions and theories that disabled persons "are too vulnerable or too fragile or too brainwashed by ablest society to resist the suggestion of doctors or family members that they are better off dead." This is, he said, "not only patronizing, it's infantilizing."17

II.4.3 In contrast, the Experts adopt an "infantilizing" view of patients. They argue that patients must be completely relieved of the "burden" of finding someone willing to kill them or help them commit suicide, and that this "burden" must be assumed by "those with the greatest power and voice," including "health care providers, professions, regulators and institutions." (Emphasis added.)18

II.4.4 Mr. Arvay assured the Supreme Court of Canada that vulnerable people would be protected by 'onerous hoops' if the Court struck down the law, but the Experts seem to believe that patients are so weak and vulnerable that others have to take over to ensure that they can get through them. Ultimately, the Experts say, "It is imperative that the burden of transfer to another physician, institution or third party not fall on the patient," and they demand that the burden should fall on objecting physicians and institutions in some circumstances.19

II.4.5 Within this context, the Experts introduce the term: "critical enabler." A "critical enabler" is any law, regulation, policy or institution critical to enabling access to euthanasia and assisted suicide, including hospitals, hospices, long term care facilities, other institutional providers and regional health authorities.20 "Critical enabler" clearly communicates moral complicity in homicide and suicide, so it is a useful term.

II.4.6 Although the Experts do not expressly apply the term to individuals, it is clear that the Experts want to force individual and institutional health care providers to become "critical enablers" in some circumstances - even if the individuals or institutions hold that killing patients and helping them commit suicide is gravely wrong. Their recommendations concerning institutional and individual conscientious objection are discussed in detail in Appendix "C."

III. The Experts' "uniquely Canadian approach"

III.1 Broadened criteria and increasing likelihood of conflict

III.1.1 Appendix B1.1: "Irremediable medical condition". The Experts want euthanasia and assisted suicide made available upon a diagnosis of any very serious illness, disease or disability for which treatment is unsuccessful or refused, including mental illness.

III.1.2 It appears that a large majority of physicians will not be willing to provide therapeutic homicide or suicide for those who are not terminally ill, let alone for those who are mentally ill. Of this group, a significant number may refuse to facilitate euthanasia or assisted suicide for the mentally ill or those not terminally ill through "effective referral" or similar means. Presumably, similar trends would be observed among other health care professionals.

III.1.3 Appendix B1.2, B1.3: Euthanasia approved for future suffering. The Experts recommend that people who are not suffering should be able to authorize euthanasia and assisted suicide by an advance directive as long as they have been diagnosed with a very serious illness, disease or disability for which treatment is unsuccessful or refused, including mental illness. Their goal is to ensure that such patients - especially those diagnosed with dementia - can be lethally injected after they become incompetent.

III.1.4 Assuming that an advance directive made when a patient is competent is binding, the Expert recommendation implies that an advance directive authorizing euthanasia that is signed by a competent patient becomes an irrevocable death warrant when the patient becomes incompetent.

III.1.5 CMA surveys indicate that the number of physicians willing to provide euthanasia or assisted suicide ranges from 6% to 29%, depending upon the condition of the patient, and excluding reference to safeguards. However, it appears that such surveys have always proposed or have always been assumed to refer to a scenario involving a patient who is actually suffering, not someone who anticipates suffering some time in the future. It seems doubtful that they are a reliable indicator of support for what the Experts propose.

III.1.6 A further complication is that the health care professional who receives and approves such an advance directive may not be the person required to lethally inject the patient some time later. Particularly in the case of dementia, health care professionals may unwilling to kill a patient on the basis of an advance directive, especially a patient who does not appear to be suffering and apparently wants to live. This has already been illustrated in the case of Margaret Bentley.21

III.1.7 Appendix B2.4: No waiting/reflection period. The Experts want euthanasia and assisted suicide made available as soon as the patient has been found eligible and competent. They reject the imposition of a waiting/reflection period, which, they say, would "impose an arbitrary barrier to access."

III.1.8 The Experts' enthusiasm for therapeutic homicide and suicide eclipses the more cautious approach of the Canadian Medical Association and seems to surpass that of the plaintiffs/appellants in Carter. The regime proposed by the Experts reflects, instead, the policies of Amsterdam's Levenseinde Kliniek (End of Life Clinic), which pulls out all stops to deliver "emergency euthanasia" in response to the upsurge of requests during the Christmas season.

III.1.9 However, Levenseinde Kliniek has been twice reprimanded by the euthanasia oversight committee for failing to exercise proper care, and a number of pharmacists have refused to provide euthanasia drugs for clinic physicians, usually in cases of dementia, psychiatric illness, or patients simply wished to die. This suggests that conflicts of conscience among health care professionals are likely to be more prevalent in the absence of a waiting/reflection period.

III.1.10 Appendix B1.4: Adolescents and children. The Experts reject what they call "arbitrary age limits." They argue that euthanasia and assisted suicide should be provided to children and adolescents who are judged competent to decide whether or not their lives are worth living. In this they go further than the Supreme Court of Canada, but also further than the successful appellants in Carter.

III.1.11 This recommendation must be read within the context of the other recommendations to appreciate its full significance. The Experts want euthanasia and assisted suicide made available to children and adolescents who are mentally ill, by means of advance directives based on anticipated suffering, and that there be no waiting/reflection periods. According to the Experts, parents must not be allowed to interfere, and may not even be made aware that their children have asked to be killed or helped to commit suicide.

III.1.12 Conflicts of conscience among health care professionals are likely to be more prevalent in the face of demands that they participate in providing euthanasia and assisted suicide for children and adolescents, particularly in the more controversial circumstances noted in III.1.11.

III.1.13 Appendix B1.5: Euthanasia/assisted suicide by non-physicians. The Experts recommend that nurse practitioners be able to process euthanasia and assisted suicide requests, including the provision of second opinions. The Experts also recommend that other health care professionals, acting under the direction of physicians, should be able to give lethal injections or provide lethal prescriptions. Even personal support workers should, they say, be able to give patients the lethal medication used for assisted suicide.

III.1.14 Allowing non-physicians to provide assisted suicide and euthanasia would increase the likelihood of disagreement and conflicts of conscience among other health care professionals and others who would not otherwise be involved with killing patients or helping them commit suicide. On the other hand, it might relieve some of the pressure on objecting physicians to become directly or indirectly involved in the services.

III.1.15 Appendix B2.3: Doctor shopping. The Experts recommend that competent patients who have been found ineligible for euthanasia and assisted suicide should be allowed to look for physicians (or nurse practitioners) willing to declare them eligible.

III.1.16 The paradigm example of this practice is the Levenseinde Kliniek (End of Life Clinic) in Amsterdam, which deals only with patients whose applications for euthanasia have been rejected by their own physicians. As noted above (III.1.9), the clinic has been criticized for some of its practices. CMA surveys of physicians suggest that the majority of Canadian physicians would be unwilling to participate in euthanasia or assisted suicide if approved for the reasons accepted by the Clinic.

III.1.17 Conflicts of conscience among health care professionals asked or ordered to participate in killing patients are more likely if they suspect that doctor shopping has compromised the process leading to an authorization or order to do so.

III.1.18 Appendix B2.5: Physicians need not be present at suicides. The Experts recommend that physicians, nurse practitioners or others who prescribe lethal medication should not be required to be present when the patient ingests it, despite the fact that complications and adverse effects are more likely in suicides.

III.1.19 Among other issues, conflicts of conscience may arise among health care professionals

● who consider it unethical or at least imprudent to absent themselves when the drug is taken, particularly in the case of patients who are mentally ill; or

● who are called upon to lethally inject a patient who has not been killed by the prescribed medication, particularly if they have had no previous involvement in the case.

III.1.20 Appendix B2.6, C1.1: Euthanasia/assisted suicide wherever people live and die. The Experts want euthanasia and assisted suicide provided in extended care facilities, assisted living facilities, group homes, correctional institutions - wherever people live and die (III.2.1).

III.1.21 It will be difficult for health care professionals, care aides, personal support workers etc. who do not want to be involved with euthanasia and assisted suicide to find work anywhere in Canada where they can be sure that they will not be required to be involved with killing patients or residents or helping them commit suicide.

III.1.22 Appendix B2.7: Families, caregivers may not be advised. The Experts note that families and caregivers may be advised of plans for euthanasia or assisted suicide only if the patient agrees. This would seem to require at least some dissembling or duplicity on the part of health care professionals and others involved to keep families in the dark.

III.1.23 Conflicts of conscience are likely to be more prevalent among health care professionals who are uncomfortable lying or dissembling to families, and those who object to euthanasia who are not directly involved will almost certainly consider participation in deception to involve unacceptable complicity in killing, even if it occurs after the fact.

III.2 Institutions, associations, organizations

III.2.1 Appendix C1.1: The meaning of "institution." The Experts want all health care institutions to become "critical enablers" of euthanasia and assisted suicide,22 but they do not stop with health care institutions. The Experts want euthanasia and assisted suicide to be provided wherever people live,23 and "wherever people are living and dying."24

III.2.2 The Experts' recommendations are aimed at every institution, facility, association, organization or private individual providing either health care or residential living for elderly, handicapped or disabled persons in Canada. This includes 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. Many of these individuals and groups may hitherto have had no expectation that they would be actively involved in enabling euthanasia and assisted suicide.

III.2.3 Appendix C1.2: All "institutions" must allow/arrange euthanasia/assisted suicide. While they Experts purport to distinguish between "faith-based" and "non-faith-based" facilities, the distinction is meaningless. They impose identical obligations on both. Among them, all facilities must allow euthanasia and assisted suicide on their premises if they cannot arrange for it to be done elsewhere through a safe and timely transfer of the patient/resident.

III.2.4 In sum, the Experts recommend that all health care and residential facilities become critical enablers of euthanasia and assisted suicide, and that no exceptions be made for private or faith-based institutions.

III.2.5 To ensure conformity, the Experts recommend that legislators prohibit anyone in Canada from establishing or operating private facilities that absolutely prohibit euthanasia or assisted suicide, or that refuse to arrange for the procedures elsewhere.

III.2.6 Appendix C1.3: All "institutions" must disclose policies. The Experts want all of these facilities forced to formulate a policy that sets out how they will assist residents, patients or clients to access euthanasia and assisted suicide, and notify applicants of that policy.

III.2.7 As the Experts' other recommendations make clear, the requirement for notification is not intended to allow objecting institutions to continue to operate without involvement in euthanasia and assisted suicide. Its practical and immediate effect will be to force them to develop policies to ensure access to both.

III.2.8 Appendix C1.4: "Institutions" may not manifest or enforce commitments. The Experts recommend a regulatory regime apparently designed to prevent facilities from manifesting and making effective a commitment to palliative care, religious or moral beliefs, or a philosophy of life or medicine that excludes killing patients/residents or helping them to commit suicide.

III.2.9 Thus, the Experts would prohibit objecting facilities from disciplining or dismissing employees or physicians who, while working in the facility, actively subvert its fundamental commitments by promoting or arranging for euthanasia or assisted suicide during interactions with patients/residents.

III.3 Objecting physicians: information, disclosure, non-discrimination

III.3.1 The Experts offer four recommendations intended to control the behaviour of physicians who, for reasons of conscience, refuse to kill patients or help them commit suicide. Reference to "physicians" here must be understood to apply to other health care workers who are acting in the place of physicians, since the Experts want other health care professionals to provide and participate directly in euthanasia and assisted suicide.

III.3.2 Of the four recommendations, the first three concern providing information necessary for medical decision making, disclosure of views, and a warning against illicit discrimination. These require only clarification or comment.

III.3.3 Appendix C2.1: Objecting physicians must provide information. The Experts recommend that physicians should be required to offer the options of therapeutic homicide or suicide, "regardless of their personal beliefs."

III.3.4 The Project's experience is that 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, so this is unlikely to be problematic.

III.3.5 However, 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.

III.3.6 The gratuitous suggestion of physician assisted suicide even to patients who meet the Carter criteria may expose physicians to criminal prosecution, since counselling suicide remains a criminal offence.

III.3.7 In addition, physicians may believe that offering assisted suicide or euthanasia to patients just blinded or paralysed by an industrial accident may be harmful or abusive. They may also be reluctant to gratuitously offer assisted suicide and euthanasia as treatment options upon a diagnosis of other "irremediable medical conditions" like dementia, congestive heart failure, or chronic obstructive pulmonary disease.

III.3.8 Appendix C2.2: Objecting physicians must disclose views and their implications. 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."

III.3.9 This requirement is unobjectionable, but it illustrates a bias arising from the Experts' unanimous view that killing patients and helping them commit suicide in defined circumstances is legally and morally/ethically normative.

III.3.10 Their unanimity on this point seems to have prevented them from seeing that the views of physicians who do not object to killing patients or helping them commit suicide also have implications for patients. Requirements for disclosure and discussion of the implications of their views should apply equally to objecting and non-objecting physicians.

III.3.11 Appendix C2.3: Objecting physicians must not illicitly discriminate. The Experts' warning against illicit discrimination is directed to only to objecting physicians: another example of discriminatory bias. A warning against illicit discrimination ought to be addressed to both objecting and non-objecting physicians.

III.3.12 There is actually more reason to offer a warning about illicit discrimination to physicians willing to provide euthanasia and assisted suicide, because they are more likely to be charged with illicit discrimination if they attempt to limit the scope of their practices: to provide euthanasia or assisted suicide only for the terminally ill, for example.

III.4 Appendix C2.4: Objecting physicians must become critical enablers

III.4.1 Physicians who, for reasons of conscience or religion, refuse to kill patients or help them commit suicide are expected, nonetheless, to become critical enablers of euthanasia and assisted suicide. The Experts offer them three alternative enabling mechanisms: referral, direct transfer of care, and transfer to a system/third party.

III.4.2 The alternatives are not problematic for physicians who have no objections to euthanasia or assisted suicide, but who do not wish to write lethal prescriptions or lethally inject patients themselves. Nor would they be unacceptable to physicians whose moral reasoning leads them to conclude that the alternatives absolve them of culpable complicity in homicide or suicide.

III.4.3 However, all three alternatives are unacceptable to physicians who consider them to involve unacceptable complicity in wrongdoing.

III.4.4 Appendix C2.4.2, C2.4.3: Referral or direct transfer of care. In refusing to refer patients for euthanasia or assisted suicide, these physicians are acting no differently than fellow citizens who would refuse to provide contact information for a crack dealer or a pimp trafficking in adolescent flesh. The same reasoning underlies their refusal to arrange for a patient to be killed by initiating the direct transfer as required by the Experts.

III.4.5 Appendix C2.4.4: Referral to "system/third party". The third alternative is the most complicated: a publicly-funded system analogous to existing organ transplant systems. The Experts believe that systems designed for delivering hearts and livers to save patients lives can be replicated to deliver lethal injections and toxic prescriptions to end them.

III.4.6 Since physicians are expected to actively participate in the former, the Experts believe that they should be forced to actively participate in the latter, if such a system is developed and publicly funded. In the absence of such a system, the Experts demand that objecting physicians arrange for patients to be killed or helped to commit suicide by direct transfer.

III.4.7 In other words, the Experts demand that objecting physicians actively demonstrate the same level of professional and moral commitment to killing patients and helping them commit suicide that they demonstrate in arranging for organ transplants. This is just as unacceptable to many objecting physicians as referral and direct transfer.

III.4.8 Appendix C2.4.5: The Experts' proposal and the CMA's proposal. The Experts' description of their "system/third party" is similar to a proposal supported by the Canadian Medical Association, but there are some notable differences.

III.4.9 The CMA's proposed "separate central information, counseling, and referral service" differs from the Experts "system/third party" in three ways.

III.4.10 First: unlike the Experts' proposal, the CMA proposal is consistent with the Carter ruling. Carter and the CMA proposal both explicitly affirm physician freedom to refuse to provide or participate in euthanasia or assisted suicide.

III.4.11 Second: the CMA proposal does not require objecting physicians to contact the central service or initiate a transfer of patients and records. The initiative remains with the patient. Objecting physicians respond as usual to a patient-initiated request for transfer of care.

III.4.12 Third: the CMA proposal was not presented or understood to require active participation of objecting physicians analogous to what is expected in relation to organ transplantation.

IV. Project response

IV.1 Expert recommendations broadening Carter criteria

IV.1.1 There is good reason to believe that the broadening of the Carter criteria in the manner suggested by the Experts (III.1) will increase the likelihood of conflicts of conscience among physicians and other health care workers, as well as the likelihood that those in positions of power and influence will attempt to suppress freedom of conscience in order to deliver euthanasia and assisted suicide. This makes robust protection of conscience policies and legislation all the more necessary.

IV.2 Expert recommendations and fundamental freedoms in general

IV.2.1 Recommendations concerning the obligations of "institutions," if implemented, will affect scores of institutions, facilities, associations, organizations and private individuals or groups providing either health care or residential living for elderly, handicapped or disabled persons in Canada, most of whom likely do not realize what the Experts have in store for them.

IV.2.2 A number of the recommendations directed at these groups will, if implemented, involve the suppression or significant restrictions of fundamental freedoms of association, belief, opinion, expression, religion or conscience. Some, such as the Experts' plan to prohibit even private non-conformist facilities, affect all of these freedoms.

IV.2.3 It is appropriate for the Project to take note of this, since these recommendations are indicative of the mindset and intentions of the Experts, and with the trajectory they will impart to public policy if they are accepted. However, most of these issues do not fall within the scope of Project advocacy.

IV.3 Expert recommendations and freedom of conscience

IV.3.1 The Project's concern is exclusively with recommendations intended to suppress freedom of conscience by forcing people to do what they believe to be wrong: in this case, forcing them to participate directly or indirectly in homicide or suicide.

IV.3.2 The following recommendations are unacceptable:

that objecting facilities should be forced to allow people to be killed or helped to commit suicide on their premises;
that objecting facilities should be forced to arrange for people to be killed or helped to commit suicide elsewhere by initiating patient/resident transfers;
that objecting physicians or health care workers should be forced to actively enable homicide or suicide by providing referrals, arranging direct transfers or enlisting or arranging the enlistment of patients in a euthanasia/assisted suicide delivery system.

IV.3.3 The position of the Experts expressed in these recommendations is that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong - even gravely wrong - even killing someone or being a party to homicide or suicide - and punish them if they refuse.

IV.3.4 Nothing of the kind is stated or implied in Carter (Appendix "A"). This is not a reasonable limitation of fundamental freedoms, but a reprehensible attack on them and a serious violation of human dignity. From an ethical perspective, it is incoherent, because it posits the existence of a moral or ethical duty to do what one believes to be wrong. From a legal and civil liberties perspective, it is profoundly dangerous. If the state can demand that citizens must be parties to killing other people and threaten to punish them or discriminate against them if they refuse, what can it not demand?

IV.3.5 Other countries have hitherto demonstrated that it is possible to provide euthanasia and physician assisted suicide without suppressing fundamental freedoms. None of them require "effective referral," "direct transfer" or otherwise conscript objecting physicians into euthanasia/assisted suicide service (Appendix "E"). In this respect, the Experts' claim to have produced "a uniquely Canadian approach" regrettably accurate.25

IV.3.6 The Canadian Medical Association (CMA) drew attention to international practice in a recent submission to the College of Physicians and Surgeons of Ontario:

As many have argued, it is entirely possible not to compromise or limit patient access on any level without compromising the exercise of conscience. The argument to the contrary is not empirically supported internationally, where no jurisdiction has a requirement for mandatory effective referral, and yet patient access does not seem to be a concern.26

IV.3.7 Within the context of the Experts' recommendations, the Project considers the following comment by the CMA particularly apt:

It is in fact in a patient's best interests and in the public interest for physicians to act as moral agents, and not as technicians or service providers devoid of moral judgement. At a time when some feel that we are seeing increasingly problematic behaviours, and what some view as a crisis in professionalism, medical regulators ought to be articulating obligations that encourage moral agency, instead of imposing a duty that is essentially punitive to those for whom it is intended and renders an impoverished understanding of conscience.27

IV.4 Legislative response

IV.4.1 In Canada, provincial governments have primary jurisdiction over human rights law, subject to the Canadian Charter of Rights and Freedoms. In view of the notable ethical aggression demonstrated by the Provincial-Territorial Expert Advisory Group and by some medical regulators (notably the College of Physicians and Surgeons of Ontario),28 provincial legislators should establish as a matter of law and public policy that people cannot be forced by the state, employers or professional or occupational organizations to do what they believe to be wrong, or punished or disadvantaged for refusing to do so. This formal support for what the Project terms preservative freedom of conscience is foundational.29

IV.4.2 By virtue of the subject matter in this particular case (homicide and suicide), the federal government has jurisdiction in criminal law. Criminal law is not used to enforce or defend fundamental rights and freedoms per se. For that, Canada relies upon human rights statutes. But Canada does use the criminal law to prevent and to punish particularly egregious violations of fundamental freedoms that also present a serious threat to society: unlawful electronic surveillance, unlawful confinement and torture, for example.

IV.4.3 Coercion or intimidation intended to force citizens to become parties to homicide or suicide is both an egregious violation of fundamental freedoms and a serious threat to society that justifies the use of criminal law. For this reason, whatever might be decided about laws regulating euthanasia and assisted suicide, the Project proposes that the federal government make it a matter of law and national public policy that people cannot be compelled to become parties to homicide or suicide, or punished or disadvantaged for refusing to do so. Appendix "F" offers an amendment to the Criminal Code designed to achieve that end.

V. Conclusion

V.1 Experts less unanimous in their opinions might have produced a report less condescending toward those who continue to find killing patients "ethically challenging," more tolerant of ethical/moral diversity, and more respectful of the moral agency of physicians. As it stands, their Final Report is a playbook for ethical/moral imperialism under cover of the rule of law.

V.2 The rule of law is fundamental principle. However, as Professor Roger Trigg observes, "When those in power over-rule conscience, even through the administration of law, that could itself undermine the basis of the rule of law, the purpose of which is to prohibit the use of arbitrary power."30

V.3 Legislators and medical regulators should note that the Experts' Final Report fails to provide any evidence that the suppression of freedom of fundamental freedoms they propose can be demonstrably justified in a free and democratic society.

Notes:

1. Ontario Ministry of Health and Long Term Care, Backgrounder: Provincial-Territorial Expert Advisory Group Convened On Physician-Assisted Dying (14 August, 2015) (Accessed 2015-12-18).

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

3. Ontario Ministry of Health and Long Term Care, News Release: Provinces, Territories Establish Expert Advisory Group On Physician-Assisted Dying. Ontario Leading Provincial-Territorial Co-Ordination to Seek Advice from Experts. (14 August, 2015) (Accessed 2015-12-18).

4. Report, p. 57-58.

5. Report, p. 32.

6. Report, p. 60.

7. Report, p. 14.

8. Report, p. 19.

9. Report, p. 2.

10. Report, p. 18.

11. Report, p. 3, 15, 43-44.

12. Factum of the Interveners, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition - British Columbia (28 August, 2014)(2) (9) (Accessed 2015-09-10).

13. Court of Appeal, on Appeal from the order of the Honourable Madam Justice Smith of the Supreme Court of British Columbia pronounced June 15, 2012, Factum of the Interveners - Euthanasia Prevention Coaltion and Euthanasia Prevention Coalition-British Columbia (24 December, 2012) 3, 6, 8 (Accessed 2015-09-10)

14. Jones A. "Ontario law society votes against accrediting graduates of B.C. university with 'abhorrent' gay sex ban." National Post, 24 April, 2014 (Accessed 2016-01-01).

15. "[O]ur argument is founded on what Professor Battin sort of described as both principles of autonomy and the value of mercy. Because we are seeking . . . to constitutionalize or to strike down the law that criminalizes assistance in suicide, we don't rely on autonomy alone. We rely upon autonomy and suffering." Supreme Court of Canada, 35591, Lee Carter, et al. v. Attorney General of Canada, et al.(British Columbia) (Civil) (By Leave) Webcast of the Hearing on 2014-10-15: Oral submission of Joseph Arvay (hereinafter "Arvay"), 113:00 | 491:20 to 113:28 | 491:20 (Accessed 2015-10-28).

16. Arvay, 115:04 | 491:20 to 115:48 | 491:20; 118:42 | 491:20 to 119:08 | 491:20.

17. Arvay, 126:38 | 491:20 to 127:00 | 491:20.

18. Report, p. 43.

19. Report, p. 45.

20. Report, p. 3, 5-6, 23-27.

21. Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (Accessed 2016-01-02).

22. Report, p. 43.

23. Report, Recommendation 27: p. 41.

24. Report, p. 46.

25. Report, Letter from the Co-chairs.

26. Canadian Medical Association, "Submission to the College of Physicians and Surgeons of Ontario: Consultation on CPSO Interim Guidance on Physician-Assisted Death"(13 January, 2016) (Hereinafter "CMA Submission").

27. CMA Submission.

28. Protection of Conscience Project, Submission to the College of Physicians and Surgeons of Ontario re: Interim Guidance on Physician Assisted Death (10 January, 2016).

29. Murphy S, Geunis S.J. "Freedom of Conscience in Health Care: Distinctions and Limits." J Bioeth Inq. 2013 Oct; 10(3): 347-54.

30. Trigg RH. "Effective Referral." Paper delivered at conference, conscience and conscientious objection in health care, 23-24 November, 2015, University of Oxford. Forthcoming in the Cambridge Quarterly of Healthcare Ethics.

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